These Terms of Service (these "Terms") govern your use of the Goby Wifi platform and the bubble.surf platform (collectively, the "Platforms"), accessible through the https://www.gobywifi.com and https://bubble.surf websites, as well as the https://guest.surf and https://wlab.surf domains used for intermediate services (collectively, the "Sites"), and which were developed and published by Whale Laboratories, Inc. ("Whale Laboratories", "us", or "we").
AS A CONDITION TO USING THE PLATFORMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT USE THE PLATFORMS. ADDITIONALLY, YOU REPRESENT AND WARRANT THAT YOU ARE ACCESSING AND USING THE PLATFORMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (SUCH AS YOUR EMPLOYER), AND THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS, WHEREBY "YOU" AND "YOUR" REFER TO THAT ENTITY.
(a) Eligibility and Registration. You must register for the Platforms by providing accurate information as prompted via the Sites, which registration we will approve or decline in our sole discretion.
(b) Authorized Users. You shall not allow any person or entity to use the Platforms other than your employees or contractors who you have authorized to use the Platforms on your behalf ("Authorized Users"). Once approved by Whale Laboratories, you may permit Authorized Users to access the Platforms by creating an account for each Authorized User under your organization's administrative account, and provided in all cases that you are responsible for all acts or omissions by your Authorized Users in connection with their use of the Platforms and their compliance with these Terms, including, without limitation, the obligations and the restrictions set forth in Section 3(b) herein.
(c) Data Collection and Use. We collect and use data from your use of the Platforms for our internal business purposes, such as to provide, maintain, and improve the Platforms. Additionally, we may collect or create data that is derived or aggregated, in deidentified form, from the data you provide through the Platforms or from your use of the Platforms, including usage data or trends with respect to the Platforms ("Aggregate Data"). Aggregate Data does not identify you, your Authorized Users, or any individual, and Whale Laboratories will not attempt to reidentify it. We retain sole and exclusive ownership of all Aggregate Data and may use it for our current and future business purposes, such as product development, research, legal compliance, and testing. We have no obligation to retain any data that you may have provided to us, except as expressly stated in a written agreement or as required by applicable law. You agree to all such collection, use, and disclosure, and will take any further acts to effect the intent of this Section requested by Whale Laboratories.
(d) Third-party Content. The Platforms may provide links to content provided by third parties. We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content available via the Platforms.
These Terms will take effect when you first access the Platforms ("Effective Date") and remain in effect until the sooner of: (a) our announcement that the Platforms are no longer in "beta test" form and that the Platforms will be subject instead to a separate software-as-a-service, subscription, or similar license agreement with associated fees; or (b) termination of these Terms by us, which will be effective upon written notice given by us to you. For clarity, Whale Laboratories may terminate these Terms for convenience at any time upon written notice. Upon termination, unless the parties agree otherwise in writing, you will immediately cease all access and use of the Platforms, and your license to the Platforms will terminate immediately. The following Sections will survive termination or expiration of these Terms: This Section 2 (with regard to termination and survival) and Sections 3(c), 3(d), 4, 5, 6, and 7.
(a) License Grant. Subject to your compliance with these Terms, Whale Laboratories grants you a limited, revocable, royalty-free, non-transferable, non-sublicensable, and non-exclusive license to use the Platforms during the term of these Terms solely for your internal business purposes in connection with managing, securing, analyzing, or improving network access and related connectivity workflows. These Terms do not entitle you to use the Platforms for purposes other than as explicitly stated herein.
(b) Restrictions. You shall not: (i) reverse engineer, reverse assemble, decompile, modify, translate or otherwise create derivative works from the Platforms, or attempt to discover any source code or underlying ideas or algorithms of the Platforms; (ii) attempt to disable, defeat or circumvent any copyright or other intellectual property protection mechanisms built into the Platforms; (iii) use or access the Platforms to develop, train, benchmark, or improve a competing product or service, or to provide bureau, timesharing, or resale services to third parties; (iv) reproduce, distribute, publicly display or publicly perform the Platforms or any aspect of the Platforms; or (v) license, sell or otherwise exploit or allow anyone besides an Authorized User to access the Platforms.
(c) Ownership. Whale Laboratories is and will remain the exclusive owner of all patents, copyrights, trademarks, trade secrets, and other intellectual property and other rights in and to the Platforms. All rights not specifically granted to you in these Terms are reserved by Whale Laboratories. The Platforms are licensed and not sold.
(d) Suggestions. You may provide, from time to time, to Whale Laboratories suggestions as to changes or modifications to the Platforms or Whale Laboratories' business or products generally ("Suggestions"). Whale Laboratories will have (and you hereby grant) the non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable, and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, and otherwise exploit all such Suggestions at its discretion and without restriction for any purpose known or hereafter invented.
In connection with your use of the Platforms, you may be exposed to confidential information of Whale Laboratories that is designated as confidential or due to its nature, you should know is confidential ("Confidential Information"). Confidential Information includes the Platforms, its performance and functionality, and your experience with the Platforms. You will not use the Confidential Information except to use the Platforms internally in accordance with these Terms or to provide Suggestions to us. You will not disclose the Confidential Information to any third party and will take reasonable precautions to protect the confidentiality of the Confidential Information. If you are required by applicable law to disclose any Confidential Information, you will give Whale Laboratories reasonable advance written notice to seek confidential treatment or otherwise protect its Confidential Information. Upon Whale Laboratories' request, or upon termination of these Terms, you will return and delete from your computer systems all Confidential Information (including any copies, summaries, extracts and other forms thereof) within your possession or control.
THE PLATFORMS ARE PROVIDED ON AN "AS IS" BASIS. WHALE LABORATORIES DOES NOT REPRESENT OR WARRANT THAT THE PLATFORMS OR YOUR USE OF THE PLATFORMS (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. WHALE LABORATORIES MAKES NO WARRANTY THAT USE OF THE PLATFORMS WILL COMPLY WITH ANY LAW; YOU ARE RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS. WHALE LABORATORIES MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT. WHALE LABORATORIES FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING BY STATUTE, COURSE OF DEALING, CUSTOM OR USAGE, TRADE PRACTICE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT OR SIMILAR LAW, AS IN EFFECT ANYWHERE.
IN NO EVENT WILL WHALE LABORATORIES BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (REGARDLESS OF THE CAUSE OF ACTION FROM WHICH THEY ARISE), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA OR USE, DAMAGES FROM DISCLOSURE OR UNAUTHORIZED USE OF PERSONAL DATA, FOR INTERRUPTED COMMUNICATIONS OR NETWORK OUTAGES, OR FROM ANY DEFECT, ERROR OR MALFUNCTION OF THE PLATFORMS, ANY SERVICES, OR OTHER SOFTWARE, HARDWARE OR EQUIPMENT, EVEN IF WHALE LABORATORIES OR ANY OTHER HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF CIRCUMSTANCES CAUSE A REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF WHALE LABORATORIES ARISING FROM, RELATING TO, OR IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT PAID TO WHALE LABORATORIES BY YOU OR $100, WHICHEVER IS GREATER, EVEN IF WHALE LABORATORIES OR ANY OTHER HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH LIABILITY, OR IF CIRCUMSTANCES CAUSE A REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION 6 FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. Additionally, you will indemnify, defend, and hold harmless Whale Laboratories from and against any damages, losses, liabilities, and expenses (including reasonable attorneys' fees), arising in connection with third-party claims arising from (i) your violation of applicable law; (ii) your misuse of the Platforms; or (iii) your gross negligence, willful misconduct, or fraud.
(a) Choice of Law. These Terms will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in Los Angeles, California and the parties irrevocably consent to the personal jurisdiction and business location therein.
(b) Notices. All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party; or (iv) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.
(c) Miscellaneous. You will not assign or transfer these Terms, by operation of law or otherwise, without the prior written consent of Whale Laboratories. Whale Laboratories will have the right to freely assign its rights and delegate its obligations in these Terms. Subject to the foregoing, these Terms are binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. These Terms are the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. These Terms may be amended or modified only by a written document executed by duly authorized representatives of the parties. Either party's failure to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these Terms will be effective unless it is in writing and signed by the party granting the waiver. Nothing in these Terms will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent. Unless otherwise expressly provided, no provisions of these Terms are intended or will be construed to confer upon or give to any person or entity, other than Whale Laboratories and you, any rights, remedies or other benefits under or by reason of these Terms. These Terms will not be construed against any party by reason of that party having drafted or prepared these Terms. If any provision of these Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of these Terms will remain in full force and effect.