These Terms and Conditions (the “Terms and Conditions”) govern the provision and use of the Services (as defined below) provided by GCI AMERICAS INC. d/b/a Gaming Compliance International, a Delaware corporation with offices at 2831 St Rose Parkway, Suite 200, Henderson, NV 89052 (“GCI”), to the customer identified in one or more Order Forms that reference these Terms and Conditions (“Customer”).
By executing an Order Form that references these Terms and Conditions, Customer agrees to be bound by these Terms and Conditions. Each Order Form, together with these Terms and Conditions, is referred to as the “Agreement.”
1. DEFINITIONS
1.1 “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party.
1.2 “Agreement” means, collectively, the Order Form (including any schedules, addendums, amendments or statements of work attached to it) and these Terms and Conditions, as amended from time to time.
1.3 “Confidential Information” has the meaning set out in Section 7.1.
1.4 “Customer Data” means information, documents, data sets and other material that Customer or its personnel or contractors provide to GCI in connection with the Services.
1.5 “Deliverables” means reports, summaries, evidence compilations, presentations and similar work product that GCI expressly agrees to deliver to Customer under an Order Form.
1.6 “GCI Materials” means the GCI Platform, proprietary methodologies, tools, templates, data models, classification systems, processes, know how and related documentation, including any modifications, enhancements or derivative works created during the Term, but excluding Customer Data and Customer Confidential Information.
1.7 “GCI Platform” means GCI’s proprietary technologies and systems used to monitor, analyze and report on online gambling and related activity, including any third party platforms GCI licenses or operates in connection with the Services.
1.8 “Order Form” means a document executed by the Parties that references these Terms and Conditions and under which Customer orders Services from GCI.
1.9 “Party” means GCI or Customer, and “Parties” means both of them.
1.10 “Services” means the monitoring, reporting, advisory, consulting and related services that GCI provides under an Order Form, including any access to the GCI Platform that may be made available to Customer.
1.11 “Term” has the meaning set out in Section 11.1.
2. SCOPE AND ORDER FORMS
2.1 Order Forms. The Parties may enter into one or more Order Forms that reference these Terms and Conditions. Each Order Form incorporates these Terms and Conditions by reference. If there is a conflict between an Order Form and these Terms and Conditions, then: (a) any provision in the Order Form that expressly states that it is intended to override these Terms and Conditions, including language such as “notwithstanding anything to the contrary in the Terms and Conditions,” will control for that specific subject matter, and (b) in all other cases, these Terms and Conditions will control.
2.2 Performance of Services. GCI will provide the Services described in each Order Form in a professional and workmanlike manner and in accordance with the Agreement. Unless expressly stated otherwise in an Order Form, all Services are provided as non-exclusive services and GCI may provide similar services to other customers, including other regulators, operators and private sector entities.
2.3 Subcontractors. GCI may use qualified subcontractors and service providers to perform portions of the Services. GCI remains responsible for the performance of any obligations it delegates to subcontractors.
3. FEES & PAYMENT
3.1 Fees. Customer will pay the fees specified in each Order Form. Unless expressly stated otherwise in an Order Form, all recurring fees are based on the Services ordered and not on actual usage and are non-refundable once incurred.
3.2 Invoicing and Payment Terms. GCI will invoice Customer as set out in the applicable Order Form. Unless the Order Form specifies different terms, all undisputed amounts are due within thirty (30) days after Customer’s receipt of the applicable invoice.
3.3 Taxes. Customer will pay all sales, use, service, excise, value added and similar taxes, duties and fees levied by any taxing authority in connection with GCI’s performance of the Agreement, whether foreign, national, state or local (“Taxes”). In no event will Customer be liable for taxes of GCI in respect of its net income, payroll or any other business activity that is unrelated to GCI’s provision of Services to Customer under the Agreement. Except as expressly stated otherwise in the Agreement, all fees exclude any applicable Taxes.
3.4 Disputed Amounts. If Customer disputes any invoiced amount in good faith, Customer will notify GCI in writing within thirty (30) days of receipt, describe the nature of the dispute in reasonable detail and pay the undisputed portion when due. The Parties will work together in good faith to resolve any dispute promptly.
3.5 Late Payments. Any undisputed amount not received by the due date may accrue interest from the date due until paid in full at the lesser of one and one-half percent (1.5 percent) per month or the maximum rate permitted by law.
3.6 Expenses. Customer will reimburse GCI for reasonable, pre-approved out of pocket expenses incurred in performing the Services, in accordance with any expense terms in the applicable Order Form.
4. CUSTOMER OBLIGATIONS
4.1 Cooperation. Customer will provide GCI with reasonable cooperation and assistance, including access to appropriate personnel, information, systems and facilities, as needed for GCI to perform the Services.
4.2 Customer Systems and Permissions. Where the Services involve coordination with Customer’s systems or third-party platforms, Customer will be responsible for obtaining any required permissions, credentials or approvals, and for complying with applicable terms of use for those systems or platforms.
4.3 Customer Data. Customer is responsible for the accuracy, quality and legality of Customer Data and for obtaining any consents or authorizations required to provide Customer Data to GCI and to permit its use as contemplated by the Agreement.
4.4 Use Restrictions. Customer will not, and will not permit any third party to:
a) use the Services or Deliverables in violation of applicable law or in a manner that infringes or misappropriates any third party rights, including privacy, publicity or intellectual property rights;
b) reverse engineer, decompile or otherwise attempt to derive the underlying ideas or source of the GCI Platform, except to the limited extent that applicable law expressly allows such activities despite this limitation;
c) resell, sublicense or provide the Services or Deliverables to any third party, except as expressly permitted in an Order Form or as reasonably required for Customer to perform its statutory or regulatory functions; or
d) use the Services or Deliverables to create a competing service that is substantially similar to the Services.
5. INTELLECTUAL PROPERTY
5.1 Ownership by GCI. As between the Parties, GCI owns all right, title and interest in and to the GCI Platform, GCI Materials and any improvements, modifications or derivative works created in the course of providing the Services. No rights are granted to Customer other than as expressly set out in the Agreement.
5.2 Ownership by Customer. As between the Parties, Customer owns all right, title and interest in and to Customer Data and Customer’s pre-existing materials.
5.3 License to GCI. Customer grants GCI a non-exclusive, worldwide, royalty free license to use, reproduce, modify and process Customer Data solely to perform the Services, generate Deliverables, maintain and improve the GCI Platform and comply with applicable law. GCI may create aggregated and de identified data sets from Customer Data and from data generated in the course of providing the Services and may use such aggregated and de identified data for internal analytics, benchmarking, research, reporting and product improvement, provided that such data does not identify Customer or any individual.
5.4 License to Customer. Subject to Customer’s payment of all applicable fees, GCI grants Customer a limited, non-exclusive nontransferable license, for the duration of the applicable Order Form, to use the Deliverables and any Customer specific output of the Services for Customer’s internal business purposes, and in the case of a governmental or regulatory Customer, for performance of its statutory or regulatory functions. Customer may share Deliverables with its professional advisors and with other government bodies as reasonably necessary for those purposes, subject to confidentiality obligations that are consistent with this Agreement.
6. DATA SECURITY AND PRIVACY
6.1 Security. GCI will maintain administrative, technical and physical safeguards designed to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access, in a manner appropriate to the nature of the Services and the type of Customer Data processed.
6.2 Personal Data. To the extent the Services involve the processing of personal data, the Parties will comply with applicable data protection laws. If required by law, the Parties will enter into a separate data protection agreement that supplements these Terms and Conditions.
6.3 Incident Notification. If GCI becomes aware of a confirmed unauthorized access to Customer Data in GCI’s possession, GCI will notify Customer without unreasonable delay and will provide information reasonably requested by Customer to meet any reporting obligations under applicable law.
7. CONFIDENTIALITY
7.1 Definition. “Confidential Information” means any non-public information disclosed by one Party to the other Party, whether orally or in writing, that is designated as confidential or that a reasonable person would understand to be confidential in light of the nature of the information and the circumstances of disclosure. Confidential Information includes Customer Data, the terms of the Agreement, the GCI Materials, the GCI Platform and any non-public information regarding a Party’s business, technology, customers, partners or strategies.
7.2 Exclusions. Confidential Information does not include information that:
a) is or becomes publicly available through no breach of this Agreement by the receiving Party;
b) was lawfully known to the receiving Party before disclosure by the disclosing Party;
c) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information; or
d) is rightfully received from a third party without restriction on use or disclosure.
7.3 Obligations. The receiving Party will:
a. use the disclosing Party’s Confidential Information only as necessary to perform its obligations or exercise its rights under the Agreement; and
b. protect the Confidential Information using at least the same degree of care it uses to protect its own similar information, and in any event no less than reasonable care.
7.4 Required Disclosure. The receiving Party may disclose Confidential Information to the extent required by law, regulation or court order, provided that the receiving Party, where legally permitted, gives the disclosing Party reasonable notice and cooperates with any efforts to seek protective measures.
7.5 Return or Destruction. Upon termination of the Agreement or upon written request, the receiving Party will promptly return or destroy the disclosing Party’s Confidential Information in its possession, except that the receiving Party may retain copies required for legal, compliance or archival purposes, subject to ongoing confidentiality obligations.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
8.1 Mutual Representations. Each Party represents that:
a) it is duly organized and validly existing under the laws of its jurisdiction of organization;
b) it has the legal power and authority to enter into the Agreement; and
c) the person signing each Order Form on its behalf is duly authorized to do so.
8.2 GCI Warranties. GCI warrants that it will perform the Services in a professional and workmanlike manner and that, to GCI’s knowledge, the Services and Deliverables, when used in accordance with the Agreement, do not infringe any third party intellectual property rights
8.3 Customer Warranties. Customer warrants that it has all rights and authority necessary to provide Customer Data to GCI and to permit its use as contemplated by the Agreement and that its use of the Services and Deliverables will comply with applicable law.
8.4 Services Not Legal Advice. GCI does not provide legal advice and does not act as Customer’s legal counsel. Although GCI may provide input relating to regulatory practices or enforcement trends, any such input is informational and does not constitute legal advice or a legal opinion. Customer is solely responsible for consulting with its own legal counsel to interpret applicable laws and to determine how to act on the information and Deliverables provided by GCI.
8.5 General Disclaimers. The Services involve monitoring and analysis of online activity that GCI does not own or control. GCI does not guarantee uninterrupted or complete visibility into all online gambling related content or actors in a jurisdiction. Except as expressly stated in this Section 8, the Services, Deliverables and GCI Materials are provided “as-is” and “as-available,” and GCI expressly disclaims all other warranties, whether express, implied, statutory or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, accuracy, non-infringement and any warranties arising from course of dealing or usage of trade.
9. INDEMNIFICATION
9.1 GCI Indemnity. GCI agrees to indemnify, defend and hold harmless Customer and its directors, officers and employees from and against any third-party claim arising from:
a) GCI’s willful misconduct or gross negligence in performing the Services; or
b) actual infringement of intellectual property rights by the Services or GCI Materials, when used by Customer in accordance with the Agreement, and GCI will pay any damages and costs finally awarded by a court against Customer, or any settlement amounts approved in writing by GCI, in connection with such claim.
9.2 Customer Indemnity. Customer agrees to indemnify, defend and hold harmless GCI and its directors, officers and employees from and against any third-party claim arising from:
a) Customer’s breach of the Agreement;
b) Customer’s use of the Services or Deliverables in violation of applicable law; or
c) GCI’s valid use of Customer Data and other information provided by Customer in accordance with the Agreement, and Customer will pay any damages and costs finally awarded by a court against GCI, or any settlement amounts approved in writing by Customer, in connection with such claim.
9.3 Mitigation. If the Services or any portion of the GCI Materials become, or in GCI’s reasonable opinion are likely to become, the subject of an infringement claim, GCI may, at its option:
a) procure for Customer the right to continue using the affected Services or materials;
b) replace or modify the Services or materials so they are no longer infringing while providing substantially equivalent functionality; or
c) if options (a) and (b) are not commercially reasonable, terminate the affected Order Form upon notice and refund any prepaid, unused fees for the terminated portion of the Services.
9.4 Procedure. The Party seeking indemnification will promptly notify the other Party of any claim, give the indemnifying Party sole control of the defense and settlement of the claim and provide reasonable assistance at the indemnifying Party’s expense. The indemnifying Party will not settle any claim that imposes a non-monetary obligation on the indemnified Party without that Party’s prior written consent.
9.5 Exclusive Remedy. This Section 9 states each Party’s sole and exclusive obligations, and the other Party’s sole and exclusive remedies, with respect to the third-party claims described in this Section.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Certain Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, STATUTORY, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR: (I) LOSS OF REVENUE, PROFITS, INCOME OR GOODWILL, (II) LOSSES RESULTING FROM INACCURATE OR UNTIMELY DATA, SYSTEM DELAYS, SERVICE INTERRUPTIONS OR DOWNTIME, OR (III) LOSS OF DATA, USE OR OTHER INTANGIBLE LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE OTHERWISE FORESEEABLE.
10.2 Cap on Liability. NOTWITHSTANDING ANY OTHER TERM IN THE AGREEMENT, IF EITHER PARTY IS EVER HELD LIABLE IN RELATION TO THE AGREEMENT, WHETHER THE CLAIM IS UNDER CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY, THAT PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT IS LIMITED TO PROVEN DIRECT DAMAGES AND WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO GCI UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY.
10.3 Additional Exclusions. GCI ASSUMES NO LIABILITY FOR ANY DAMAGE TO OR LOSS OF ANY CUSTOMER OR THIRD-PARTY EQUIPMENT, SOFTWARE OR DATA RESULTING FROM ANY CAUSE, AND DISCLAIMS LIABILITY FOR LIMITATIONS, DELAYS OR FAILURES ARISING FROM THE INTERNET, WIRELESS NETWORKS AND ELECTRONIC COMMUNICATIONS OUTSIDE OF ITS DIRECT AND REASONABLE CONTROL.
10.4 Exceptions. The limitations in this Section 10 will not apply to a Party’s indemnification obligations under Section 9, a Party’s breach of its confidentiality obligations under Section 7 or Customer’s obligation to pay fees and expenses.
11. TERM, SUSPENSION, AND TERMINATION
11.1 Term. These Terms and Conditions take effect on the date Customer first enters into an Order Form that references them and remain in effect until all Order Forms have expired or been terminated.
11.2 Order Form Term. The initial term and any renewal terms for each Order Form will be as set out in that Order Form.
11.3 Termination for Cause. Either Party may terminate an Order Form or the Agreement in its entirety upon written notice if the other Party: (a) materially breaches the Agreement and fails to cure that breach within thirty (30) days after receiving written notice describing the breach; or (b) becomes insolvent, enters receivership or another similar proceeding or ceases to conduct business in the ordinary course.
11.4 Suspension. GCI may suspend the Services, or any portion of them, upon notice to Customer if: (a) an undisputed invoice is more than thirty (30) days past due and Customer does not cure within ten (10) days after written notice; or (b) GCI reasonably determines that Customer’s use of the Services poses a security risk, violates applicable law or could subject GCI or any third party to liability. GCI will resume the Services promptly after the condition giving rise to the suspension has been resolved.
11.5 Effect of Termination. Upon expiration or termination of an Order Form, GCI will stop providing the Services under that Order Form, Customer will promptly pay all fees and expenses accrued through the effective date of termination and each Party will, upon request, return or destroy the other Party’s Confidential Information in accordance with Section 7.5.
11.6 Survival. Sections that by their nature are intended to survive termination will survive, including Sections 3, 5, 6, 7, 8.4, 8.5, 9, 10, 11.7 and 12.
11.7 Agreed Damages Upon Early Termination. If Customer terminates any Order Form or this Agreement, in whole or in part, before the end of the then current term for any reason other than GCI’s uncured material breach, or if GCI terminates any Order Form or this Agreement for cause under Section 11.3 due to Customer’s uncured material breach (collectively, “Early Termination”), Customer agrees to pay GCI, as liquidated damages for such Early Termination and not as a penalty, an amount equal to the monthly fees agreed upon under the applicable Order Form multiplied by the number of months remaining in the then current term of that Order Form as of the effective date of the Early Termination, plus any outstanding fees due and payable for Services rendered before the effective date of the Early Termination. The Parties agree that (a) such amounts are agreed damages payable to GCI for Customer’s cause of the Early Termination of the applicable Order Form or this Agreement and are not a penalty, (b) it would be difficult or impossible to ascertain GCI’s actual damages arising from such a termination, (c) the amount of such liquidated damages represents a reasonable and good faith estimate of such damages, and (d) the liquidated damages agreed upon under this Section 11.7 are not indirect, punitive, special, incidental, statutory, exemplary or consequential damages for purposes of this Agreement. If Customer causes the Early Termination of any individual Service under an Order Form, the agreed damages provided under this Section 11.7 will apply, as applicable, to the specific Service or Services terminated. GCI’s rights under this Section 11.7 are in addition to any other rights or remedies GCI may have under this Agreement or at law, provided that GCI will not be entitled to recover duplicative damages arising from the same Early Termination.
12. MISCELLANEOUS
12.1 Independent Contractors. The Parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture, agency or employment relationship between the Parties.
12.2 Assignment. Neither Party may assign the Agreement, in whole or in part, without the prior written consent of the other Party, which will not be unreasonably withheld, except that either Party may assign the Agreement without consent to an Affiliate or to a successor in connection with a merger, acquisition or sale of all or substantially all of its assets, provided the assigning Party remains responsible for obligations that accrued prior to the assignment. Any attempted assignment in violation of this Section 12.2 is void.
12.3 Governing Law and Venue. The Agreement will be governed by and construed in accordance with the laws of the State of Nevada, without regard to conflict of laws rules. Subject to any statutory requirements that apply to Customer as a public body, any dispute arising out of or relating to the Agreement will be brought exclusively in the state or federal courts located in Clark County, Nevada, and each Party consents to the jurisdiction of such courts.
12.4 Export and Sanctions. Each Party will comply with applicable export control and economic sanctions laws in connection with its activities under the Agreement.
12.5 Anti-Corruption. Each Party represents that it has not received and will not receive any bribe, kickback or other improper payment in connection with the Agreement and will comply with applicable anti-corruption laws.
12.6 Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement, other than payment obligations, due to events beyond its reasonable control, including natural disasters, war, terrorism, labor disputes, government actions, internet or telecommunications failures or power outages. The affected Party will use reasonable efforts to mitigate the impact of such events.
12.7 Amendments to Order Forms. Any amendment or modification to an Order Form must be in writing and signed by a duly authorized representative of each Party.
12.8 Waiver. No waiver of any breach or default under the Agreement will be effective unless in writing and signed by the waiving Party. A waiver of any breach is not a waiver of any other breach.
12.9 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect, and the Parties will replace the invalid or unenforceable provision with a valid provision that most closely reflects the Parties’ original intent.
12.10 Notices. GCI may send routine notices and communications under the Agreement by email to the contact information provided by Customer in the applicable Order Form, and such notices will be deemed given on the date sent. All other formal notices under the Agreement will be in writing and sent to the addresses specified in the applicable Order Form by first class, registered or certified mail, or reputable courier service, and will be deemed given upon delivery or refusal of delivery.
12.11 Interpretation. All headings in this Agreement are for convenience only and do not affect its interpretation. The Parties agree that the controlling language of this Agreement is English and that, to the extent Customer has any legal right to require a different language, Customer voluntarily waives that right. Unless otherwise expressly defined in this Agreement, the words used in this Agreement will bear their natural and customary meaning. This Agreement has been negotiated and approved by both Parties. Any ambiguity or uncertainty in this Agreement will not be interpreted or construed against either Party on the basis that such Party or its counsel drafted or was deemed to have drafted any provision of this Agreement.
12.12 Electronic Signatures and Counterparts. This Agreement may be executed in counterparts, which may be exchanged electronically, including by email delivery of a scanned signature page, each of which will be deemed an original and all of which together will constitute one and the same instrument. Electronic signatures will be treated as original signatures for all purposes under this Agreement, and the Parties agree that the use of electronic signature software (such as: DocuSign or AdobeSign) to execute this Agreement or any Order Form constitutes valid execution and evidence of intent to be bound.