These Terms of Service (these "Terms") govern your use of the Goby Wifi Platform (the "Goby Wifi Platform"), accessible through the website, and which was developed and published by Whale Laboratories, Inc. ("Whale Laboratories", "Goby Wifi", "us", or "we").
AS A CONDITION TO USING THE GOBY WIFI PLATFORM, 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 GOBY WIFI PLATFORM. ADDITIONALLY, YOU REPRESENT AND WARRANT THAT YOU ARE ACCESSING AND USING THE GOBY WIFI PLATFORM 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.
1. GOBY WIFI PLATFORM.
(a) Eligibility and Registration. You must register for the Goby Wifi Platform by providing accurate information as prompted via the Site, 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 Goby Wifi Platform other than your employees or contractors who you have authorized to use the Goby Wifi Platform on your behalf ("Authorized Users"). Once approved by Goby Wifi, you may permit Authorized Users to access the Goby Wifi Platform 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 Goby Wifi Platform 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. In addition to the data collected during registration, Goby Wifi may capture your browsing history and the URL of pages visited using the Goby Wifi Platform, and store and use such data to facilitate your use of the Goby Wifi Platform. We may also collect and use all data collected from your use of the Goby Wifi Platform for our internal business purposes, such as to provide, maintain, and improve the Goby Wifi Platform. Additionally, we may collect or create data that is derived or aggregated, in deidentified form, from the data you provide through the Goby Wifi Platform or from your use of the Goby Wifi Platform, including usage data or trends with respect to the Goby Wifi Platform ("Aggregate Data"), and we retain sole and exclusive ownership of all Aggregate Data and may use it without restriction, including 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. You agree to all such collection, use, and disclosure, and will take any further acts to affect the intent of this Section requested by Goby Wifi.
(d) Third-party Content. The Goby Wifi Platform 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 Goby Wifi Platform.
(e) Fees. Merchants are required to pay a subscription fee per location for use of the Goby Wifi Platform. Advertisers are required to pay for advertising campaigns run through the Goby Wifi Platform. All fees are due and payable in accordance with the billing terms provided to you. Goby Wifi reserves the right, in its discretion, to set, amend, or revise fees for the Goby Wifi Platform with at least thirty (30) days' advance written notice to you, whereby your continued use of the Goby Wifi Platform after such thirty (30) day period constitutes acceptance of such fees and notice, and you will owe and pay such fees in accordance with such notice from Goby Wifi.
2. TERM AND TERMINATION.
These Terms will take effect when you first access the Goby Wifi Platform ("Effective Date") and remain in effect until the sooner of: (a) our announcement that the Goby Wifi Platform is no longer in "beta test" form and that the Goby Wifi Platform 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, Goby Wifi 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 Goby Wifi Platform, and your license to the Goby Wifi Platform 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.
3. LICENSE AND OWNERSHIP.
(a) License Grant. Subject to your compliance with these Terms, Goby Wifi grants you a limited, revocable, royalty-free, non-transferable, non-sublicensable, and non-exclusive license to use the Goby Wifi Platform during the term of these Terms solely for your internal business purposes to improve WiFi management and customer engagement. These Terms do not entitle you to use the Goby Wifi Platform 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 Goby Wifi Platform, or attempt to discover any source code or underlying ideas or algorithms of the Goby Wifi Platform; (ii) attempt to disable, defeat or circumvent any copyright or other intellectual property protection mechanisms built into the Goby Wifi Platform; (iii) use or access the Goby Wifi Platform for commercial purposes, including but not limited to in the development of a competing product or services; (iv) reproduce, distribute, publicly display or publicly perform the Goby Wifi Platform or any aspect of the Goby Wifi Platform; or (v) license, sell or otherwise exploit or allow anyone besides an Authorized User to access the Goby Wifi Platform.
(c) Ownership. Goby Wifi 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 Goby Wifi Platform. All rights not specifically granted to you in these Terms are reserved by Goby Wifi. The Goby Wifi Platform are licensed and not sold.
(d) Suggestions. You may provide, from time to time, to Goby Wifi suggestions as to changes or modifications to the Goby Wifi Platform or Goby Wifi's business or products generally ("Suggestions"). Goby Wifi 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.
4. CONFIDENTIAL INFORMATION.
In connection with your use of the Goby Wifi Platform, you may be exposed to confidential information of Goby Wifi that is designated as confidential or due to its nature, you should know is confidential ("Confidential Information"). Confidential Information includes the Goby Wifi Platform, its performance and functionality, and your experience with the Goby Wifi Platform. You will not use the Confidential Information except to use the Goby Wifi Platform 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 Goby Wifi reasonable advance written notice to seek confidential treatment or otherwise protect its Confidential Information. Upon Goby Wifi's 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.
5. DISCLAIMER OF WARRANTIES.
THE GOBY WIFI PLATFORM IS PROVIDED ON AN "AS IS" BASIS. GOBY WIFI DOES NOT REPRESENT OR WARRANT THAT THE GOBY WIFI PLATFORM OR YOUR USE OF THE GOBY WIFI PLATFORM (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. GOBY WIFI MAKES NO WARRANTY THAT USE OF THE GOBY WIFI PLATFORM WILL COMPLY WITH ANY LAW; YOU ARE RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS. GOBY WIFI 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. GOBY WIFI 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.
6. LIMITATION OF LIABILITY; INDEMNITY.
IN NO EVENT WILL GOBY WIFI 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 GOBY WIFI PLATFORM, ANY SERVICES, OR OTHER SOFTWARE, HARDWARE OR EQUIPMENT, EVEN IF GOBY WIFI 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 GOBY WIFI ARISING FROM, RELATING TO, OR IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT PAID TO GOBY WIFI BY YOU OR $100, WHICHEVER IS GREATER, EVEN IF GOBY WIFI 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 Goby Wifi 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 Goby Wifi Platform; or (iii) your gross negligence, willful misconduct, or fraud.
7. GENERAL PROVISIONS.
(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 venue 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. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
(c) Miscellaneous. You will not assign or transfer these Terms, by operation of law or otherwise, without the prior written consent of Goby Wifi. Goby Wifi 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 Goby Wifi and you, any rights, remedies or other benefits under or by reason of these Terms. Each party acknowledges and agrees that it has been represented by legal counsel of its choice throughout the negotiation of these Terms, that it has participated in the drafting thereof, and that these Terms will not be construed in favor of or against either party solely on the basis of a party's drafting or participation in the drafting of any portion of 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. Captions of the articles, sections and subsections of these Terms are for reference purposes only and do not constitute terms or conditions of these Terms and will not limit or affect the meaning or construction of the terms and conditions of these Terms.