Terms and Conditions

Contents

• 1. About these terms
• 2. Who you contract with
• 3. Definitions
• 4. Order of precedence
• 5. Accounts and access
• 6. Plans, trials and changes
• 7. Fees, invoices and taxes
• 8. Renewal and cancellation
• 9. Your data
• 10. Security and confidentiality
• 11. Acceptable use
• 12. Integrations, third-party services and AI
• 13. Our intellectual property
• 14. Service availability and support
• 15. Consulting and training services
• 16. Partner and reseller workspaces
• 17. Career services for individuals
• 18. Warranties and disclaimers
• 19. Suspension, termination and your data afterwards
• 20. Limitation of liability
• 21. Indemnities
• 22. Compliance
• 23. Publicity
• 24. Governing law and disputes
• 25. Changes to these Terms
• 26. General
• 27. Contact
• Schedule 1: Data Processing Terms

1. About these terms

These Terms and Conditions (the Terms) govern your use of geminista.com (the Website), the Geminista PMO platform at pmo.geminista.com and its mobile app (the Platform), and the consulting, training and career services we provide (the Services). Please read them carefully. They contain limits on our liability, an agreement to resolve disputes by arbitration, and rules about automatic renewal.

You accept these Terms when you create an account, start a trial, place an order, tick a box or click a button that refers to them, or use the Platform or Services. If you accept on behalf of an organisation, you confirm that you are authorised to bind it, and "you" means that organisation. If you are not authorised, or do not agree, do not use the Platform or Services.

The Platform is a business product. It is offered to organisations and to people acting for a business or profession, not to consumers. Career services for individuals are covered by section 17 (Career services for individuals).

2. Who you contract with

"Geminista", "we" and "us" means the Geminista company that contracts with you. Unless an Order names a different Geminista company, it is decided by the country of the billing address on your account (or, for individual services, where you live):

Geminista is a brand used by these companies. We may transfer a contract from one Geminista company to another, or to a successor (including following a change of company name or a reorganisation), by notice to you, provided your rights under the contract are not reduced. Each Geminista company is responsible only for the contracts it signs.

3. Definitions

• Order: an order form, quote, proposal, statement of work, online checkout or plan selection that you accept and that refers to these Terms.
• Customer Data: the information, files and content that you or your Users put into the Platform, excluding Usage Data and Geminista Content.
• Usage Data: technical and usage information about how the Platform is used (for example log, device and performance data), which we create when providing the Platform.
• Geminista Content: the Platform software, design and documentation, and our libraries, methods, templates, benchmarks and examples, including the PMO functions, benefits and KPI library, in every language.
• Users: the people you allow to use your workspace, including your employees, contractors and consultants, and, in a partner workspace, your clients' staff.
• Subscription Term: the period you have paid for, as shown in your Order or on the Plan & billing page.

4. Order of precedence

If documents conflict, this order applies: (1) a signed agreement or Order that expressly overrides these Terms, but only for that Order; (2) the Data Processing Terms in Schedule 1; (3) these Terms; (4) policies and descriptions referred to in these Terms. Terms in your purchase order, supplier portal or vendor registration do not apply, even if we accept or sign them for administrative reasons, unless a Geminista director signs a document that expressly accepts them.

5. Accounts and access

• You must give accurate account and billing details and keep them up to date. Each User needs their own login; logins may not be shared.
• Users must be at least 18 years old. You are responsible for your Users, for their compliance with these Terms, and for everything done under your account.
• Keep passwords, recovery codes and API keys confidential, and tell us at once at contact@geminista.com if you suspect unauthorised access. Two-step sign-in is mandatory; we are not responsible for loss caused by credentials you or your Users failed to protect.
• An account owner, administrator or the person who pays may manage the workspace. Where people in your organisation disagree about control of a workspace, we may rely on instructions from the contracting party shown in our billing records.

6. Plans, trials and changes

• Plans and limits: each plan includes the users, organisation units, value plans, projects, features and add-ons shown on the Plan & billing page or in your Order. If you exceed a limit, we may block further use beyond it, ask you to buy extra capacity, or charge for it at our current prices.
• Free trials: a trial lasts for the period shown (normally 30 days). It is provided "as is", without any service level, support commitment, indemnity or warranty, and our total liability for a trial is limited to USD 100. When a trial ends without a paid plan, the workspace becomes read-only; we may delete trial workspaces that remain unpaid for 60 days after the trial ends.
• Add-ons and extra users: add-ons and extra users can be added during a Subscription Term for the remaining days (pro rata) and renew with your plan. Removing an add-on or reducing users takes effect at the end of the paid period; no refund is given for the remainder.
• Upgrades and downgrades: upgrades take effect when paid; downgrades take effect at renewal. A downgrade can reduce limits and switch off features; you are responsible for exporting or reducing data beforehand.
• Beta and preview features are optional, may change or stop at any time, and are provided "as is" without any warranty, service level or indemnity.
• Enterprise plans are sold by quote. Prices, limits, hosting location (including optional hosting in Saudi Arabia) and onboarding are set out in the Order.

7. Fees, invoices and taxes

• Fees are payable in advance for each Subscription Term, in the currency of the Order, by card through our payment provider or by bank transfer. Card details are handled by the payment provider and never reach our servers.
• Fees are due on the date shown on the payment request (normally 14 days). If you pay by bank transfer you must quote our reference and bear your own bank charges.
• Taxes: fees exclude value added tax, goods and services tax, sales tax and similar taxes, which are added where the law requires. Where reverse charge applies, you account for the tax. Invoices are issued in the form required by the issuing company's tax law, including electronic invoices where applicable.
• Withholding tax: if the law requires you to withhold tax from a payment to us, you may deduct only the amount at the rate we have confirmed in writing, and you must send us the official withholding certificate within 60 days of payment. If you do not, or deduct more than the confirmed amount, you must pay us the difference on request.
• Late payment: if any amount is overdue, we may (after at least 7 days' notice) suspend or restrict access until it is paid, charge reasonable collection costs, and, where the law allows, charge interest at 1% per month or the highest lawful rate if lower. Where interest is not permitted under the law that applies to you, a late payment fee covering our actual collection costs applies instead. Suspension does not stop fees accruing.
• Price changes: we may change list prices for future Subscription Terms by giving at least 30 days' notice before renewal. Agreed special prices apply only for the term stated in the Order.
• Discounts and promo codes apply only as stated (percentage, duration, plans and expiry), cannot be combined unless we say so, have no cash value, end at the end of their stated period or at renewal if no period is stated, and may be withdrawn if obtained in breach of their conditions. Referral credits are applied to future invoices only.
• Disputed invoices: you must tell us in writing of any good-faith dispute within 15 days of the invoice date and pay the undisputed part on time.
• Refunds: fees are non-refundable, except (a) where these Terms expressly provide a refund, (b) where we end your subscription for convenience, in which case we refund prepaid fees for the unused period, or (c) where the law that applies to you requires a refund.

8. Renewal and cancellation

Paid subscriptions renew automatically for the same period (monthly or yearly) unless you cancel on the Plan & billing page, or one of us gives written notice, before the end of the current Subscription Term. Yearly subscriptions require notice at least 30 days before renewal. We send a renewal payment request before each renewal. Cancellation takes effect at the end of the paid period; the workspace then becomes read-only and the data rules in section 19 (Suspension, termination and your data afterwards) apply.

9. Your data

• Ownership: as between you and us, you own Customer Data. You give us a worldwide, non-exclusive, royalty-free licence to host, copy, process, transmit and display Customer Data only as needed to provide, secure, support and improve the Platform for you, to prevent abuse, and as required by law.
• Responsibility: you are responsible for the accuracy, quality and legality of Customer Data and for having every notice, consent and right needed to put it into the Platform, including personal data of your staff, stakeholders and clients, and for deciding whether the Platform suits data with special legal requirements. Do not upload payment card data, government identification numbers, health data or classified government information unless your Order expressly allows it.
• Data protection: when we process personal data within Customer Data, we act as your processor under the Data Processing Terms in Schedule 1. Our Privacy Policy explains how we handle personal data as a controller (for example account, billing, website and marketing data).
• Usage Data and aggregated data: we may use Usage Data to run, secure and improve our products. We may create anonymised and aggregated statistics that do not identify you, your Users or any individual, and use them for any lawful purpose. Peer benchmark figures are shared with other organisations only if you switch on benchmark sharing, and only as anonymised ratios and scores.
• Data location: the Platform is hosted in the data centres of our hosting providers. Hosting in a specific country (for example Saudi Arabia) is available only where your Order says so.
• Backups: we keep encrypted backups to protect the service. Backups are not an archive for your use; you should keep your own copies of important information using the export tools.

10. Security and confidentiality

We apply administrative, technical and physical safeguards appropriate to the Platform, including encryption in transit, encrypted secrets, separation of each organisation's data, two-step sign-in and audit logs, as described in our Security, Privacy & API Guide. No system is completely secure, and we do not guarantee that unauthorised access will never occur.

Each party will keep the other's Confidential Information confidential, use it only for the purpose of the contract, and protect it with at least reasonable care. Confidential Information means non-public information disclosed by one party to the other that is marked confidential or should reasonably be understood as confidential, including Customer Data, pricing, security information and unreleased features. It excludes information that is or becomes public without breach, was already known to the recipient, is independently developed, or is lawfully received from a third party. A party may disclose Confidential Information where the law or a court requires, after giving notice where lawful. These duties last for the contract and five years after it ends, and for trade secrets and Customer Data for as long as they remain confidential.

11. Acceptable use

You must not, and must not allow anyone to:

• use the Platform or Services in breach of any law, regulation or third-party right, including data protection, anti-spam, export control and sanctions laws;
• upload malware or content that is unlawful, defamatory, infringing or harmful;
• probe, scan or test the security of the Platform, or bypass its protections (including copy protection, watermarking, rate limits, user limits or access controls), except through a security test we have approved in writing;
• copy, scrape, export in bulk, reproduce, sell, sublicense or publish Geminista Content, including the PMO functions, benefits and KPI library, or use it to build or train a competing product or an AI model;
• reverse engineer, decompile or attempt to obtain the source code of the Platform, except to the extent the law expressly permits;
• resell, rent or provide the Platform to third parties, or use it as a service bureau, except through an approved partner plan;
• access the Platform with bots or automated tools other than our published API, or overload it;
• use the Platform to build a competing product, or publish benchmarks or performance tests of it without our written consent;
• create accounts by automated means or under false pretences, or use multiple trials to avoid paying.

We may remove content or suspend access that we reasonably believe breaches this section or the law, poses a security risk, or could expose us or others to harm or liability. We will give notice where reasonable and restore access once the issue is resolved.

12. Integrations, third-party services and AI

• The Platform can connect to services you choose, such as Jira, Microsoft Teams and Outlook, single sign-on providers, accounting systems and payment providers. Those services are provided by third parties under their own terms. When you connect one, you instruct us to exchange data with it, and we are not responsible for that third party, its availability or its handling of your data.
• Your own AI: AI features use an AI service that you connect and control (for example your own Azure OpenAI). You are responsible for that service, its terms and its costs. We do not use Customer Data to train AI models, and we do not allow our providers to do so.
• AI output may be inaccurate or incomplete. It is not professional, legal, financial or investment advice. You must review it before relying on it, and you are responsible for decisions made with it.

13. Our intellectual property

We and our licensors own all rights in the Website, the Platform, Usage Data and Geminista Content, and in all improvements to them. Subject to these Terms and payment of fees, we grant you a non-exclusive, non-transferable, non-sublicensable right during the Subscription Term for your Users to use the Platform and Geminista Content for your internal business purposes. Reports, board packs and documents you create in the Platform may be used and shared within your organisation and with your advisers, stakeholders and regulators, but may not be sold or used to offer a competing PMO library or product.

If you or your Users give us suggestions or feedback, we may use them freely without obligation or payment. Our names, logos and "Plan · Deliver · Prove → Value" are our trademarks and may not be used without our written permission. No rights are granted except those expressly stated.

14. Service availability and support

We aim to keep the Platform available at all times, apart from planned maintenance (which we try to schedule outside GCC business hours and announce in advance) and emergency maintenance. Unless your Order includes a service level agreement, we do not promise any particular availability, response time or resolution time, and any service credits in a service level agreement are your sole remedy for unavailability. Support is provided by email and in-app request during business hours. We may change, improve or remove features, but will not materially reduce the core functionality of a paid plan during your current Subscription Term.

15. Consulting and training services

Consulting, PMO-as-a-Service, onboarding and training services are provided as described in the relevant Order or statement of work, which sets out the scope, deliverables, fees, expenses and timetable. Unless the Order says otherwise: work is charged as quoted, with reasonable pre-approved travel and expenses on top; you must provide timely access to people, information and decisions, and we are not responsible for delays or extra costs caused by you; deliverables are accepted when you use them or ten business days after delivery unless you report a material non-conformity in writing; and we own our pre-existing materials, methods and tools, while you receive a perpetual licence to use the deliverables for your internal purposes once paid. Our services are advisory: decisions, approvals and results remain your responsibility. Results in case studies are not a promise of the same outcome.

During any engagement and for 12 months after it ends, neither party will actively solicit for employment any employee or consultant of the other who was directly involved in the engagement, without the other's written consent. General advertising and approaches made by the individual are not solicitation.

16. Partner and reseller workspaces

If you use a Partner plan to manage workspaces for your clients, you are responsible for having authority from each client, for your clients' compliance with these Terms, for the accuracy of what you tell them about the Platform, and for paying for client workspaces under your plan. You may not make any promise or warranty on our behalf. When a workspace is handed over to the client, the client becomes our customer for that workspace. The Geminista Connect referral programme is governed by the Partner Terms.

17. Career services for individuals

Résumé writing, interview coaching and career mentoring are provided to individuals as described when you book. Fees are payable in advance. You may cancel for a full refund before work starts or more than 24 hours before a scheduled session; after that, fees for work done or sessions missed are not refundable, unless the law that applies to you gives you a stronger right, which these Terms do not limit. We do not guarantee interviews, job offers or any other outcome. You are responsible for the accuracy of the information you give us and in your final documents.

18. Warranties and disclaimers

Each party confirms that it has authority to enter into the contract. We warrant that, during a paid Subscription Term, the Platform will perform materially as described in its documentation and that we will provide Services with reasonable skill and care. If we breach this warranty and you tell us within 30 days, we will use reasonable efforts to correct it; if we cannot within a reasonable time, either party may end the affected subscription or Service and we will refund prepaid fees for the unused period. This is your sole remedy for breach of these warranties.

Except as expressly stated in these Terms, and to the extent the law allows, the Website, the Platform, Geminista Content, AI features and Services are provided "as is" and "as available", and we disclaim all other warranties and conditions, whether express, implied or statutory, including merchantability, fitness for a particular purpose, title, non-infringement, accuracy and uninterrupted or error-free operation. Benchmarks, KPI targets, ROI calculations, maturity scores and other outputs are estimates that depend on the data you enter; they are tools to support your judgement, not guarantees of results.

19. Suspension, termination and your data afterwards

• Either party may terminate a subscription or Order by written notice if the other party materially breaches it and does not fix the breach within 30 days of notice, or becomes insolvent or ceases business.
• We may suspend or terminate immediately if you breach the acceptable use rules, if required by law or a regulator, if continued service would expose us to legal or security risk, or if fees remain unpaid 30 days after the due date.
• When a subscription ends, all rights to use the Platform end and any unpaid fees become due. If we terminate for your breach, no refund is due. If you terminate for our uncured breach, we refund prepaid fees for the unused period.
• Export: for 30 days after a paid subscription ends, the workspace remains available read-only so that an owner can export Customer Data (or ask us for an export). After that period we may delete Customer Data, and we will delete it from the live system within 90 days, except where the law requires us to keep it. Backups are overwritten in the normal backup cycle. Billing records and tax invoices are kept for the periods tax law requires.
• Sections on fees owed, confidentiality, intellectual property, disclaimers, limitation of liability, indemnities, disputes and any other terms which by their nature should continue, survive termination.

20. Limitation of liability

To the maximum extent permitted by law:

1. Neither party is liable for any indirect, incidental, special, consequential or punitive loss, or for loss of profits, revenue, business, goodwill, anticipated savings or data (other than our obligation to restore data from backups as part of the Platform), however caused, even if advised of the possibility.
2. Each party's total aggregate liability arising out of or relating to the contract, the Platform and the Services, in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the fees paid and payable by you to us in the 12 months before the event giving rise to the claim (for free use or trials: USD 100; for career services: the fees paid for that service).
3. These limits do not apply to: your obligation to pay fees; your breach of the acceptable use rules or of our intellectual property rights; a party's indemnity obligations; or liability that cannot be limited by law, including for fraud, gross negligence or wilful misconduct, or death or personal injury caused by negligence.

The fees reflect this allocation of risk. Claims must be brought within one year after the claimant becomes aware of the cause of action, unless the law requires a longer period.

21. Indemnities

Our indemnity: we will defend you against any third-party claim alleging that the Platform, used as permitted by these Terms during a paid Subscription Term, infringes that party's patent, copyright or trademark, or misappropriates its trade secret, and pay the damages and costs finally awarded or agreed in settlement. This does not apply to claims arising from Customer Data, third-party services, AI output, your modifications, combination with items we did not provide, use after we have offered a non-infringing alternative, or use in breach of these Terms. If a claim is made or likely, we may obtain the right for you to continue using the Platform, modify it so it does not infringe, or end the affected subscription and refund prepaid fees for the unused period. This section states our entire liability for infringement claims, and our total liability under it is subject to an amount equal to the fees paid in the prior 12 months.

Your indemnity: you will defend and indemnify Geminista, its affiliates and their directors, employees and contractors against third-party claims, regulatory fines and related costs arising from Customer Data, your or your Users' breach of these Terms or of law, your use of third-party services you connect, or services you provide to your own clients using the Platform.

The indemnified party must notify the indemnifying party promptly, let it control the defence and settlement (no settlement may impose an admission or obligation on the indemnified party without its consent), and give reasonable help at the indemnifying party's cost.

22. Compliance

• Anti-bribery: each party will comply with applicable anti-bribery and anti-corruption laws, including those of Saudi Arabia, the United Arab Emirates, India, the United States (Foreign Corrupt Practices Act) and the United Kingdom. Neither party will offer, give, request or accept any improper payment or advantage in connection with the contract. A breach of this clause is a material breach that cannot be remedied.
• Government customers: where you are a government or public entity, you confirm that your procurement rules have been followed and that no person has received a commission or other benefit for influencing the award, except as disclosed to and approved by you in writing.
• Sanctions and export control: you confirm that you, your Users and your owners are not located in, organised under the laws of, or owned or controlled by a person in a country or region subject to comprehensive sanctions, and are not listed on any sanctions list of the United Nations, the United States, the European Union, the United Kingdom or your own country. You will not use or allow access to the Platform in breach of those laws. We may suspend access immediately where needed to comply with them.

23. Publicity

We may name your organisation as a customer and show your logo in customer lists on our website and in sales materials, unless you tell us in writing that you do not agree. Case studies, quotes and press releases need your prior written approval.

24. Governing law and disputes

The governing law and dispute forum are set by the table in "Who you contract with", unless an Order says otherwise. Before starting arbitration, the parties will try in good faith to settle the dispute through senior representatives for 30 days after written notice of the dispute.

• Arbitration will be before a sole arbitrator (or three arbitrators if the amount in dispute exceeds USD 1,000,000), in English, under the rules of the stated institution in force when the arbitration starts. The award is final and binding and may be enforced in any court with jurisdiction. Claims must be brought individually and not as a class or representative action.
• Either party may seek urgent interim relief, such as an injunction to protect confidential information or intellectual property, from any competent court. We may also bring a claim for unpaid fees in the courts of the place where you are established.
• The United Nations Convention on Contracts for the International Sale of Goods does not apply.
• Where a mandatory law that applies to you, including rules that apply to government entities, requires a different governing law or forum, that law or forum applies only to the extent it is mandatory; the rest of this section continues to apply.

25. Changes to these Terms

We may update these Terms to reflect changes in the law, our services or our business. We will post the updated Terms with a new "Last updated" date and, for material changes that affect paid subscriptions, give at least 30 days' notice by email or in the Platform. Changes apply from the start of your next Subscription Term, except changes required by law or made for security reasons, which apply when stated. If a material change is adverse to you, you may end your subscription by notice before the change applies, and we will refund prepaid fees for the unused period. Otherwise, continued use after the change applies means you accept it.

26. General

• Force majeure: neither party is liable for failure or delay caused by events beyond its reasonable control, such as natural disasters, war, terrorism, civil unrest, government action, epidemics, failure of internet, power or hosting providers, or cyber-attacks that reasonable security would not prevent. Payment obligations are not excused.
• Assignment: you may not assign or transfer the contract without our written consent. We may assign or transfer it to an affiliate, a successor company or a purchaser of the relevant business.
• Subcontractors: we may use subcontractors and service providers, and remain responsible for their performance of our obligations.
• Notices: we may give notices by email to the account owner or billing contact, or in the Platform. Notices to us must be sent to contact@geminista.com and, for legal notices, also by courier to the address of the contracting Geminista company.
• Independent parties: the parties are independent contractors. Nothing creates a partnership, agency, joint venture or employment relationship.
• Entire agreement: these Terms and the Orders are the entire agreement on their subject and replace earlier discussions. Neither party relies on any statement not set out in them.
• Severability and waiver: if any part is found unenforceable, it is changed to the minimum extent needed and the rest continues. Failure to enforce a right is not a waiver.
• Third parties: no one other than the parties (and indemnified persons under the indemnities) has any right to enforce these Terms.
• Language: these Terms may be provided in Arabic and other languages. If there is any difference, the English version prevails, unless the law that applies to you requires otherwise.
• Electronic acceptance: acceptance online and electronic signatures are binding, and our electronic records are evidence of the contract.

27. Contact

Questions about these Terms: contact@geminista.com. Legal notices: Geminista Technologies LLC, 117 South Lexington Street, STE 100, Harrisonville, Missouri 64701, United States; or Denkoit Softech Private Limited, Hyderabad, Telangana, India, as applicable.

Schedule 1: Data Processing Terms

This Schedule applies when we process personal data contained in Customer Data on your behalf ("Customer Personal Data"). You are the controller (or data fiduciary) and we are your processor. It is designed to meet the processor requirements of the Saudi Personal Data Protection Law, the UAE Federal Decree-Law No. 45 of 2021, the Indian Digital Personal Data Protection Act, 2023, and other applicable data protection laws.

1. Instructions: we process Customer Personal Data only on your documented instructions, which are these Terms, your Order and your use and configuration of the Platform, unless the law requires otherwise (in which case we tell you first where lawful). We tell you if we believe an instruction breaches the law.
2. Details of processing: subject matter and duration: the provision of the Platform during the Subscription Term and the export period; nature and purpose: hosting, storage, display, analysis, transmission, support and security; data subjects: your Users, staff, stakeholders, project team members, contractors and clients; types of data: names, work contact details, job titles, roles, organisation unit, authentication data, activity records, and any personal data you choose to enter in plans, projects, risks, reports and attachments.
3. Confidentiality: everyone we authorise to process Customer Personal Data is bound by confidentiality.
4. Security: we implement appropriate technical and organisational measures, including encryption in transit, encryption of secrets, logical separation of each customer's data, access controls with two-step sign-in, logging, encrypted backups and vulnerability management.
5. Sub-processors: you authorise the sub-processors listed in our Privacy Policy. We impose data protection obligations on them no less protective than this Schedule and remain responsible for them. We give at least 30 days' notice of a new sub-processor by updating the list and, for paid plans, by email on request; if you object on reasonable data protection grounds and we cannot resolve the objection, you may end the affected subscription and receive a refund of prepaid fees for the unused period.
6. International transfers: Customer Personal Data may be processed outside your country where our hosting or sub-processors are located, using the transfer safeguards required by applicable law (such as standard contractual clauses). Where your Order specifies in-country hosting, Customer Data at rest is stored in that country.
7. Assistance: taking into account the nature of the processing, we help you respond to data subject requests (mainly through the Platform's self-service tools), and with security, breach notification, impact assessments and consultations with regulators, where required by law. Assistance beyond the self-service tools may be charged at our standard rates.
8. Personal data breach: we notify you without undue delay, and in any case within 48 hours, after becoming aware of a personal data breach affecting Customer Personal Data, with the information reasonably available to help you meet your own notification duties. Notification is not an admission of fault.
9. Deletion: after the end of the Subscription Term and the export period we delete Customer Personal Data as set out in section 19 (Suspension, termination and your data afterwards) of these Terms, unless the law requires us to keep it.
10. Audits: we make available information reasonably necessary to demonstrate compliance, including our security documentation and answers to reasonable security questionnaires once a year. On-site audits are allowed only where required by law or a regulator, with 30 days' notice, during business hours, at your cost, and subject to confidentiality.
11. Liability: liability under this Schedule is subject to the limitation of liability in these Terms.