GOLO MOBILE APPEND USER LICENSE AGREEMENT
Updated September 22, 2021
This End User License Agreement (the “Agreement” or “EULA”) or governs your (“you” or “your”) use of the GOLO mobile app (the “Software”) provided by GOLO, LLC (“GOLO”, “we”, “us” or “our”) designed to operate on your smartphone, tablet, or other mobile computing device (“Mobile Device”).
BY CLICKING THE “AGREE” BUTTON, OR DOWNLOADING AND INSTALLING, OR USING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND YOU UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER, OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND, (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION, YOU SHOULD DELETE IT FROM YOUR MOBILE DEVICE. IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. Please carefully review Section 20 of this Agreement for more information.
GOLO reserves the right to change or modify this Agreement or any other GOLO policies related to use of the Software at any time and at its sole discretion in future releases of the Software, for which you will be required to review and click through in order to continue using the Software.
- License. Subject to the terms of this Agreement, GOLO grants you a limited, non-exclusive and nontransferable license to download, install and use the Software for your personal use on a single Mobile Device owned or otherwise controlled by you.
- Eligibility. No part of the Software is directed to persons under the age of 18. You must be at least 18 years of age to access and use the Software. Any use of the Software is void where prohibited. By accessing and using the Software, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
- Geographic Restrictions. The Software is provided for access and use only by persons located in the United States and Canada. Using the Software may be prohibited or restricted in certain countries. You acknowledge that you may not be able to access all or some of the Software features outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Software from outside the United States or Canada, you are responsible for compliance with local laws.
- Allowale Uses of the Software. Any use of the Software in any manner not allowed under (A) this Agreement, (B) for users of Apple-manufactured devices (e.g., iPhone, iPad, etc.) the Apple LSEULA (see below), including, without limitation, resale, transfer, modification, reverse engineering, or distribution of the Software, or (C) for users of Android devices which is restricted by Google, is prohibited. This Agreement does not entitle you to receive and does not obligate GOLO to provide hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software.
- Account Access. You are responsible for maintaining the confidentiality of the username and password you designate or are assigned during the registration process (and as are updated thereafter), and you are solely responsible for all activities that occur under your username and password. You agree to immediately notify GOLO of any disclosure or unauthorized use of your username or password or any other breach of security. You should ensure that you log out from your account at the end of each session. GOLO is not responsible for any misuse of your account or information if you have (voluntarily or involuntarily) given someone access to it.
Updates. GOLO may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that GOLO has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (i) Updates will automatically download and be installed; or (ii) you may receive notice of or be prompted to download and install available Updates. You agree to promptly download and install all Updates and you acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this Agreement upon installation.
- Third Party Materials. Episodes made available by the Software may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that GOLO is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright or trademark compliance, legality, decency, quality or any other aspect thereof. GOLO does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and your access and use of them are entirely at your own risk and subject to such third parties’ terms and conditions. Once you choose to link to another site, you should read and understand that site’s privacy statement before disclosing any personal information.
- Your Acceptable Use. Use of the Software and any of your information or content collected, transmitted or stored in connection with the Software is limited to the functionality of the Software. GOLO reserves the right, in its sole discretion, to terminate this Agreement, request that you remove the Software from your Mobile Device for any reason, including, but not limited to, GOLO’s reasonable conclusion that you have violated this Agreement. GOLO may terminate or suspend your account at any time without notice if GOLO believes that you have breached this Agreement, or for any other reason, with or without cause, in its sole discretion. GOLO is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account. After your account is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
- Intellectual Property; Reservation of Rights. You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. GOLO and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, including all copyrights, trademarks, other intellectual property rights and all other rights therein or relating thereto, except as expressly granted to you in this Agreement. All rights not specifically granted herein are reserved by GOLO.
- Limitation of Liability. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, (A) IN NO EVENT SHALL GOLO BE LIABLE TO YOU WITH RESPECT TO (1) USE OF THE SOFTWARE, CONTENT, OR SERVICES OR (2) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED US$100.00, AND (B) IN NO EVENT SHALL GOLO BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY WEBSITE THAT THE SOFTWARE MAY DIRECT YOU TO, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OR CORRUPTION OF DATA, BREACH OF PRIVACY OR SECURITY, TRANSMISSION OF PERSONAL DATA, FAILURE OR MALFUNCTION OF YOUR MOBILE DEVICE.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, GOLO DOES NOT MAKE, AND GOLO HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, UPGRADES, UPDATES, AND SUPPORT, PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES OR MALWARE, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Intellectual Property Rights. You and GOLO acknowledge that, in the event of any third party claim that the Software or your use of the Software infringes any third party’s intellectual property rights, GOLO, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Should the Software be found to infringe any intellectual property rights of a third party, your sole remedy shall be either to cease using the Software or to use a non¬infringing version of the Software should GOLO choose to provide you with such a non-infringing version.
- Product Claims. You acknowledge that GOLO, not Apple, Inc. or Google, is responsible for addressing any claims of the end-user or any third party relating to the Software or your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and, (iii) claims arising under consumer protection or similar legislation.
- Contact Information. Should you wish to contact GOLO with any questions, complaints or claims with respect to the Software, email GOLO at firstname.lastname@example.org.
- Proprietary Nature of Software and Trademarks. GOLO owns or is licensed to use the Software and any and all trademarks, service marks and content included in the Software. The Software may incorporate trademarks, service marks or other content in connection with the services it provides and such trademarks, service marks or other content remains at all times the property of its respective owners. You have no right or license with respect to any trademarks, service marks and other content owned by GOLO or any third party that is visible on or provided to you through the Software.
- Governing Law. In order to assure consistency in the interpretation of this agreement, this Agreement is governed exclusively by the laws of the State of Delaware, without giving effect to its conflict of law rules. This Agreement is not governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties further agree that the place of contract and performance of this Agreement is in Camden, Delaware. You consent to the exclusive venue and personal and subject matter jurisdiction in the courts of Camden, Delaware.
- Waiver/Severability. The failure of GOLO to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is for any reason held unenforceable or invalid, then this Agreement shall be construed as if such provision were not contained in this Agreement.
- Assignment. Except to the extent such rights cannot be restricted by applicable law, you shall not assign, sublicense, convey or transfer (collectively, “Assign”) this Agreement (whether by contract, merger or operation of law) without the prior written consent of GOLO, and any such attempt by you to Assign any rights, duties, or obligations hereunder shall have no power or effect, and is subject to GOLO’s right to immediately terminate this Agreement, the license granted hereunder, and your access to your account. GOLO may freely Assign this Agreement and any of your data or information you submit to GOLO or which GOLO collects from you or your Mobile Device.
- Time Limitation. Any claim or action against GOLO must be brought within twelve (12) months of the cause arising, otherwise such claim or action is permanently barred.
- Arbitration. MANDATORY BINDING ARBITRATION
- Other than for the grounds set forth in the section below labeled “Exceptions to Agreement to Arbitrate”, in the event of any dispute, claim, question or disagreement arising from or relating to the Terms or the breach thereof, the parties hereto shall use reasonable efforts to settle the dispute, claim, question, or disagreement. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of thirty (30) days, then, upon notice by either party to the other, such dispute, claim, question or disagreement shall be resolved by binding arbitration in Camden, Delaware, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this Section. This agreement to arbitrate will be specifically enforceable under the prevailing law of any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. The demand for arbitration shall be made within a reasonable time after the dispute has arisen, and in no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations. The parties agree that one (1) arbitrator shall arbitrate the dispute. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made pursuant to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The decision of the arbitrator shall be made in writing and shall be final. Judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification or appeal, except to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act, the terms of which Sections the parties agree shall apply. The expenses of arbitration, including and the fees and expenses of the arbitrator and the AAA, shall be shared equally by the parties.
- The arbitrator will have no authority to award attorneys’ fees, punitive damages, or any other monetary relief not measured by the prevailing party’s actual damages and each party irrevocably waives any claim thereto. The award may include equitable relief. The arbitrator will not make any ruling, finding, or award that does not otherwise conform to the Terms. The arbitrator may render a summary disposition relative to all or some of the issues, provided that the responding party has had an adequate opportunity to respond to any such application for such disposition.
- The parties agree to treat all aspects of the arbitration as confidential, as provided in the AAA Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Further, judgment on the arbitrators’ award may be entered in any court having jurisdiction.
- Exceptions to Agreement to Arbitrate. You and GOLO agree go to court to resolve disputes relating to: (a) your or GOLO’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights, patents, or the like); or (b) your violation of GOLO’s User Content Posting Guidelines.
- Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury for any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
- Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor GOLO will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under this Agreement or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
- Entire Agreement; Modifications. This Agreement comprises the entire agreement between you and GOLO, and supersedes any other agreement or discussion, oral or written, with respect to the subject matter of this Agreement, and may not be changed except by a written agreement signed in hardcopy form by both parties. There shall be no application of any rule of construction of this Agreement against the drafter as you have had an opportunity to have this Agreement reviewed by your counsel. You agree that your online account is non-transferable and all of your rights to your profile or contents within your account terminate upon your death or your leaving your company.
- Notice. GOLO may provide you with notices, including those regarding changes to this Agreement, by postings in the Software. Such notices may not be received if you violate this Agreement by accessing the Software in an unauthorized manner. You agree that you are deemed to have received any and all notices that would have been delivered had you accessed the Software in an authorized manner.