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Terms of Service (Apps)

TERMS OF USE

goTenna, Inc. (“goTenna,” “we,” “us,” or “our”) owns and operates the messaging and connectivity platform available via mobile application (the “Platform”). We provide you access to the Platform subject to the following Terms of Use. By clicking “I ACCEPT,” you acknowledge that you have read, understood, and agree to be legally bound by the terms and conditions of these Terms of Use and the terms and conditions of our Privacy Policy, which is hereby incorporated by reference in its entirety (collectively, this “Agreement”). If you do not agree to any of these terms, then please do not access or use the Platform.

We may update these Terms of Use from time to time, and we will provide notice of any modifications. By continuing to access or use the Platform after we make any modifications to the Terms of Use, you are agreeing to those modified terms.

Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.

1. LICENSE GRANT; RESTRICTIONS OF USE

Subject to these Terms of Use, goTenna hereby grants to you a limited, non-exclusive, non-transferable license, without the right to grant sublicenses, to access and use the Platform; provided, however, that you may only use the Platform in connection with goTenna products purchased and used pursuant to the goTenna terms and conditions associated with such products. Furthermore, if you have accessed or used the Platform through an application downloaded from the Apple, Inc. (“Apple”) application store (such app, the “Apple App”), you will use the Apple App only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.

You will not: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, or translate the Platform; (iii) make any copies of the Content (as defined below) or any components of the Platform; (iv) make the Platform available on a “service bureau” basis; (v) remove or modify any proprietary marking or restrictive legends placed on the Content or the Platform; (vi) use the Platform in violation of any applicable laws or for any purpose not specifically permitted in these Terms of Use; or (vii) introduce into the Platform any software, virus, worm, “back door,” Trojan Horse, or similar harmful code. You may not access the Platform for purposes of monitoring performance or functionality, or for any other benchmarking or competitive purposes.

You also hereby agree to comply with our community guidelines:

  • You will not upload, post, e-mail, transmit, or otherwise make available any content that:
    • Infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
    • Is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, or promotes extreme violence or cruelty to animals, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
    • Discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
  • You will not “stalk” or otherwise harass another user of the Platform or any other person.
  • You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.

We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Platform, without notice and without liability to you, if you fail to adhere to these guidelines.

2. INTELLECTUAL PROPERTY

The Platform contains material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of goTenna (collectively referred to as the “Content”). The Platform and the Content is owned by us or by third parties. The Platform and the Content are protected under both United States and foreign laws. Unauthorized use of the Platform and the Content may violate copyright, trademark, and other laws. You have no rights in or to the Platform or the Content, and you will not use the Platform or the Content except as permitted under these Terms of Use. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Platform or Content. You may not sell, transfer, assign, license, sublicense, or modify the Platform or Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Platform or Content in any way for any public or commercial purpose. The use or posting of the Platform or Content on any other website or in a networked computer environment for any purpose is expressly prohibited.

If you violate any part of this Agreement, your permission to access and/or use the Content and the Platform automatically terminates. 

The trademarks, service marks, and logos of goTenna (“goTenna Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of goTenna. Other company, product, and service names on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with goTenna Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of goTenna Trademarks inures to our benefit. 

Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.

3. USER TRANSMISSIONS

You may provide certain information, data, graphics, text, or other content to the Platform. You warrant and covenant that you have the necessary rights and/or third-party consents to freely use and share any content which you provide through the Platform (“User Transmissions”). You accept full responsibility for User Transmissions that you transmit via the Platform.

You accept that by sending User Transmissions, the User Transmissions will become available to the user(s) of the Platform you share such User Transmissions with, who may share, download, republish or in other ways interact with the User Transmissions. goTenna is not responsible for such other user’s (or users’) use or misuse of your User Transmissions.

4. COPYRIGHT COMPLAINTS

If you believe the Platform contains any content that infringes your copyright, please contact our Copyright Agent, as detailed below, with the following information:

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • A description of the copyrighted work that you claim has been infringed;
  • A description of where the material that you claim is infringing is located on the Platform;
  • Your address, telephone number and email address;
  • A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
  • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or duly authorized to act on the copyright owner’s behalf.

To contact our Copyright Agent by email, please write to hi@gotenna.com, with COPYRIGHT NOTICE in the subject line.

5. COMMUNICATIONS TO US

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.

6. ACCESSING AND DOWNLOADING A GOTENNA APP FROM APPLE

The following terms apply to any Apple App. These terms are in addition to all other terms contained in these Terms of Use:

  • You acknowledge and agree that (i) these Terms of Use are concluded between you and goTenna only, and not Apple, and (ii) goTenna, not Apple, is solely responsible for the Apple App and content thereof. Your use of the Apple App must comply with the App Store Terms of Service.
  • You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App.
  • In the event of any failure of the Apple App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App. As between goTenna and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of
  • You acknowledge that, as between goTenna and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the Apple App or your possession and use of the Apple App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  • You acknowledge that, in the event of any third party claim that the Apple App or your possession and use of that Apple App infringes that third party’s intellectual property rights, as between goTenna and Apple, goTenna, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use.
  • You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  • You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use as related to your license of the Apple App, and that, upon your acceptance of the terms and conditions of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use as related to your license of the Apple App against you as a third party beneficiary thereof.
  • Without limiting any other terms of these Terms of Use, you must comply with all applicable third party terms of agreement when using the Apple App.

7. TERM AND TERMINATION

This Agreement shall be effective from the time you click “I AGREE” and shall continue until terminated by either party as set forth herein. 

We may terminate this Agreement, without penalty or liability, at any time, for any or no reason. We may terminate and/or suspend your registration or your use of the Platform immediately if you violate the terms and conditions of this Agreement.

Upon termination of this Agreement: (i) all rights and licenses granted hereunder will immediately cease; and (ii) you will immediately cease all use and access of the Platform. YOU AGREE THAT GOTENNA WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE PLATFORM IN ACCORDANCE WITH THIS AGREEMENT.

8. NO WARRANTIES; LIMITATION OF LIABILITY

THE PLATFORM AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND EXCEPT ANY REQUIRED BY APPLICABLE LAWS. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, GOTENNA SHALL NOT BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING UNDER THESE TERMS OF USE OR RELATING HERETO, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS, AND WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.

9. EXTERNAL SITES

The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

10. INDEMNIFICATION

You will defend, indemnify, and hold harmless goTenna, our affiliates, and our and their respective officers, directors, managers, employees, and agents from any and all liabilities, costs, damages, and expenses (including reasonable attorneys’ fees) in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from your breach of this Agreement or your access to, use, or misuse of the Platform or the Content. We shall promptly notify you of any Claim; provide you, at your expense, with reasonable cooperation in the defense of the Claim; and provide you with sole control over the defense and negotiations for a settlement or compromise. Notwithstanding the foregoing, we reserve the right to assume the exclusive defense and control of any Claim that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

11. COMPLIANCE WITH APPLICABLE LAWS

The Platform is based in the United States. We make no claims concerning whether the Platform or the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Platform or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

12. MISCELLANEOUS

This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of law provisions. In the event of a dispute arising under or relating to this Agreement or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the Dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH DISPUTE IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA.  Any court in the county of New York, New York may enforce the arbitrator’s award.  The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the county of New York, New York.  The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In addition, goTenna may litigate in court to seek injunctive relief. 

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect.

The following provisions will survive any expiration or termination of this Agreement: “Intellectual Property,” “User Transmissions,” “Communications to Us,” “Term and Termination,” “No Warranties; Limitation of Liability,” “Indemnification,” and “Miscellaneous.”

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.

You consent and agree that your clicking of the “I ACCEPT” button constitutes your electronic signature, acceptance, and agreement under the United States federal E-SIGN legislation and that such electronic signature will meet the requirements of an original signature as if actually signed by you in writing. Further, you agree that no certification authority or other third-party verification is necessary to the enforceability of your signature. At our request, any electronically signed document must be re-executed in original form by you. No party hereto may raise the use of an electronic signature as a defense to the enforcement of this Agreement or any amendment or other document executed in compliance with this Agreement.

Copyright 2015 goTenna, Inc. All rights reserved.