Terms of Service
Last Modified: October 20, 2020
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Our Service
This is a contract between you and Gowalla Exploration. You must read and agree to this Agreement before using our Service. If you do not agree to this Agreement, you may not use our Service. You may use our Service only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under thirteen (13) years of age is strictly prohibited and in violation of this Agreement. If you are under eighteen (18) years of age, you may use the Service only with involvement a parent or legal guardian and their consent and agreement to this Agreement. If you are under 18, you represent that you have your parent or guardian’s permission to use the Service and that your parent or guardian is agreeing to this Agreement. If you are a parent or legal guardian of a User under the age of 18, by allowing your child to use the Service, you are subject to the terms of this Agreement and responsible for your child’s activity on the Service. Our Service is not available to any Users we previously removed from our Service.
1.2 Access and use
Subject to your compliance with the terms and conditions of this Agreement, you may access and use our Service solely for your personal, non-commercial use. We reserve all rights not expressly granted by this Agreement in and to our Service and our Intellectual Property (defined below). We may suspend or terminate your access to our Service at any time for any reason or no reason.
You will not, and you will not assist, permit or enable others to, do any of the following:
use our Service for any purpose other than as expressly set forth in Section 1.2 above;
disassemble, reverse engineer, decode or decompile any part of our Service;
use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Service;
copy, rent, lease, sell, transfer, assign, sublicense, modify, alter, or create derivative works of any part of our Service or any of our Intellectual Property;
remove any copyright notices or proprietary legends from our Service;
use our Service in a manner that impacts: (i) the stability of our servers; (ii) the operation or performance of our Service or any other User’s use of our Service; or (iii) the behavior of other applications using our Service;
use our Service in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in our sole discretion) to us, our providers, our suppliers or Users;
use our Service in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
use our Service for benchmarking or competitive analysis of our Service;
attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running our Service;
transmit viruses, worms, or other software agents through our Service;
impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use our Service for any invasive or fraudulent purpose;
share passwords or authentication credentials for our Service;
bypass the measures we may use to prevent or restrict access to our Service or enforce limitations on use of our Service or the content therein, including without limitation features that prevent or restrict use or copying of any content;
identify us or display any portion of our Service on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights; or
identify or refer to us or our Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of our Service under this Agreement, without our express written consent.
1.4 User Accounts
Your account on our Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete profile information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your User Account. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for any losses caused by any unauthorized use of your User Account.
You may control certain aspects of your User profile and how you interact with our Service by changing the settings in your settings page. By providing us with your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other promotional messages, such as changes to features of our Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting Gowalla Exploration support at [insert email] or by clicking the unsubscribe link within each promotional message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers; however, opting out will not prevent you from receiving Service-related notices.
You acknowledge that you do not own the User Account you use to access our Service. Notwithstanding anything in this Agreement to the contrary, you agree that we have the absolute right to manage, regulate, control, modify and/or eliminate any data stored by us or on our behalf on our (including by our third party hosting providers’) servers as we see fit in our sole discretion, in any general or specific case, and that we will have no liability to you based on our exercise of such right. All data on our servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON OUR SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN OUR DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON OUR SERVERS.
By connecting to our Service with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
1.5 User Data
For the purposes of this Agreement, “Intellectual Property” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
1.6 Changes to our Service
We may, without prior notice, change our Service; stop providing our Service or features of our Service, to you or to Users generally; or create usage limits for our Service. We may permanently or temporarily terminate or suspend your access to our Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
1.7 Interactions with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor interactions between you and other Users. We shall have no liability for, and expressly disclaim all liability arising from, your interactions with other Users, or for any User’s action or inaction.
1.8 Service Location, Restrictions
Our Service is controlled and operated from facilities in the United States. We make no representations that our Service is available for use in other locations. Those who access or use our Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use our Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
2. User Content
2.1 User Content
Some areas of our Service allow Users to submit, post, display, provide, or otherwise make available content, including any personal information (any such materials a User submits, posts, displays, provides, or otherwise makes available on our Service is referred to as “User Content”).
WE CLAIM NO OWNERSHIP RIGHTS OVER USER CONTENT CREATED BY USERS. However, you understand that certain portions of our Service may allow other Users to view, edit, share, and/or otherwise interact with your User Content. By providing or sharing User Content through our Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. We have the right (but not the obligation) in our sole discretion to remove any User Content that is shared via our Service. You hereby grant each User of our Service a non-exclusive license to access your User Content through our Service, and to use, reproduce, distribute, display and perform such User Content that you make available to other Users as permitted through the functionality of our Service.
By submitting, posting, displaying, providing, or otherwise making available any User Content on or through our Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Gowalla Exploration a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with our Service and Gowalla Exploration’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of our Service (and derivative works thereof) in any media formats and through any media channels, and, solely in anonymous or aggregate form, to improve our products and services and for our other business purposes (and any and all such derived data is deemed part of our Intellectual Property).
In connection with your User Content, you affirm, represent and warrant the following:
You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by our Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
Your User Content and our use thereof as contemplated by this Agreement and our Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property rights and privacy rights.
We may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
We take no responsibility and assume no liability for any User Content that you or any other User or third-party posts, sends, or otherwise makes available over our Service. You shall be solely responsible for your User Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on our Service, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that Gowalla Exploration shall not be liable for any damages you allege to incur as a result of or relating to any User Content.
3. Our Proprietary Rights
Except for your User Content, our Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Gowalla Exploration Content”), and all Intellectual Property rights related thereto, are the exclusive property of Gowalla Exploration and its licensors (including other Users who post User Content to our Service). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Gowalla Exploration Content. Use of the Gowalla Exploration Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about our Service, including without limitation about how to improve our Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Gowalla Exploration under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to Gowalla Exploration, or developed by our employees, or obtained from sources other than you.
4. Paid Services
4.1 Billing Policies
Certain aspects of our Service may be provided for free, while certain other aspects of our Services or products available on our website may be provided for a fee or other charge. If you elect to use paid aspects of our Service or make a purchase on our website, you agree to our payment terms set forth herein and on our website, as we may update them from time to time. We may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in our sole discretion.
4.2 Payment Information; Payment Method; Taxes.
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with our Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method (“Payment Method”) used in connection with a purchase or transaction or other monetary transaction interaction with our Service at the prices in effect when such charges are incurred. You must provide us with a current, valid, accepted Payment Method. When you initiate a purchase transaction, you authorize us to provide your payment information to third parties so we can complete your transaction and to charge your Payment Method, in United States dollars, for the type of transaction you have selected (plus any applicable taxes and other charges) and any applicable recurring charges as described below. We currently use Stripe as our third party service provider for payment services, and by using our Service you agree to be bound by Stripe’s Services Agreement, available at https://stripe.com/us/legal. If your payment is not successfully settled for any reason, you remain responsible for any amounts not remitted to us. All payments for transactions are non-refundable and non-transferable except as expressly provided in these Terms. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
4.3 Subscription Plans
We may offer plans that you can sign up for that allow you to use certain aspects of our Service (a “Subscription Plan”). We may change Subscription Plans by offering new services for additional fees and charges and adding or amending fees and charges for existing Subscription Plans in our sole discretion. Any change to a Subscription Plan’s pricing or payment terms will become effective in the billing cycle following notice of such change to you as provided in these Terms. Subscription Plans may set allotments for use of designated Service aspects. Use of Service aspects in excess of a Subscription Plan’s designated allotment may result in (additional) fees, as specified in the plan, and such fees will be included in a true-up invoice or charged automatically via your Payment Method. For any paid Subscription Plan, you agree to make payments, and we may automatically charge your Payment Method, as described below, for so long as your User Account remains active. Subscription Plans may be offered for a set subscription period (each such period, a “Subscription Term”). Your subscription continues until cancelled by you or we terminate your access to or use of our Service in accordance with these Terms. All Subscription Plans will automatically renew until cancelled by you for renewal terms equal in length to the original Subscription Term. If you do not want a Subscription Plan to renew, you must cancel it at least thirty (30) days before the end of the Subscription Term by providing written notice to us of such cancellation (including by email to [insert email] or via your account settings page on your User Account). If you purchase a Subscription Plan, we (or our third-party payment processor) will automatically charge you each year on the anniversary of the commencement of your subscription, using the payment information you have provided, until you cancel your subscription. By agreeing to these Terms and electing to purchase a Subscription Plan, you acknowledge that your Subscription Plan has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your subscription by you or us.
4.4 No Refunds
You may cancel your User Account at any time; however, there are no refunds for cancellation. In the event that we suspend or terminate your User Account or this Agreement, you understand and agree that you shall receive no refund or exchange for any virtual property, any unused time on a subscription, any license or subscription fees for any portion of our Service, any content or data associated with your User Account, or for anything else. If you cancel or terminate your Subscription Plan, your right to use our Service will continue until the end of your then-current Subscription Term and then terminate without further charges.
5. Game Currency or Virtual Goods
The Service includes virtual, game currency (such as virtual tickets, coins or points) that may be earned through in-game achievements or activities (“Virtual Currency”). The Service also includes virtual, digital items or other goods (“Virtual Goods”) that may be purchased from Gowalla Exploration using Virtual Currency. Virtual Currency and Virtual Goods may never be redeemed for actual monetary instruments, other goods or other items of monetary value from Gowalla Exploration or any third party. Other than a limited, personal, revocable, non-transferable, non-sublicensable license to use the Virtual Currency and Virtual Goods in the Service only, you have no right or title in or to any Virtual Currency or Virtual Goods appearing or originating in the Service, or any other attributes associated with use of the Service or stored within the Service. Gowalla Exploration may at any time regulate, control, modify and/or eliminate the Virtual Currency or Virtual Goods as it sees fit in its sole discretion.
6. Sweepstakes, Contests and Similar Promotions
7. Additional Terms for Mobile Applications
7.1 Mobile Applications
We may make available software to access our Service via a compatible mobile device (“Mobile Applications”). You may incur mobile data charges from your wireless provider in connection with the Mobile Applications, and you agree that you are solely responsible for any such charges. We grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for your User Account on one or more mobile devices owned or leased solely by you, solely in accordance with this Agreement. You acknowledge that we may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof. We or our third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void.
7.2 App Store Terms
If you acquire any Mobile Applications from any third-party app store: (i) you acknowledge that this Agreement is between you and us only, and not with such third party; (ii) your use of such Mobile Applications must comply with such third party’s then-current app store terms and conditions; (iii) such third party is only a provider of the app store where you obtained such Mobile Applications; (iv) we, and not such third party, are solely responsible for our Mobile Applications; (v) such third-party has no obligation or liability to you with respect to such Mobile Applications or this Agreement; and (vi) you acknowledge and agree that such third-party is a third-party beneficiary to this Agreement as it relates to such Mobile Applications.
We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our commercially reasonable security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
10. DMCA Notice
Since we respect artist and content owner rights, it is Gowalla Exploration’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Gowalla Exploration’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
2. Identification of the copyrighted work that you claim has been infringed;
3. Identification of the material that is claimed to be infringing and where it is located on the Service;
4. Information reasonably sufficient to permit Gowalla Exploration to contact you, such as your address, telephone number, and, e-mail address;
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Gowalla Exploration, Inc.
1241 Adams St, Box 1001
Saint Helena CA 94574
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Gowalla Exploration and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Gowalla Exploration’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Gowalla Exploration has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Gowalla Exploration may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
11. Third-Party Services and Information
You agree to defend, indemnify and hold harmless Gowalla Exploration and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to our Service, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property rights; (d) your violation of any applicable law, rule or regulation; (e) User Data and User Content or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of our Service with your unique username, password or other appropriate security code.
13. No Warranty
OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF OUR SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GOWALLA EXPLORATIONOR THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, GOWALLA EXPLORATION, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS; THAT OUR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT OUR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF OUR SERVICE. We attempt to ensure that information provided on or in connection with the SERVICE complete, accurate and current. Despite our efforts, such information may occasionally be inaccurate, incomplete or out of date. Accordingly, we make no representation as to the completeness, accuracy or currentness of such information, including all descriptions, images, references, features, content, specifications and services described or depicted on the SERVICE. Such information is also subject to change at any time without notice.
FURTHER, GOWALLA EXPLORATION DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OUR SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND GOWALLA EXPLORATION WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
14. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GOWALLA EXPLORATION, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICE. UNDER NO CIRCUMSTANCES WILL GOWALLA EXPLORATION BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GOWALLA EXPLORATION ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH OUR SERVICE; AND/OR (G) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL GOWALLA EXPLORATION, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO GOWALLA EXPLORATION HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF GOWALLA EXPLORATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
15. Arbitration and Class Action / Jury Trial Waiver
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM GOWALLA EXPLORATION. For any dispute with Gowalla Exploration, you agree to first contact us at [insert email] and attempt to resolve the dispute with us informally. In the unlikely event that Gowalla Exploration has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco, California, unless you and Gowalla Exploration agree otherwise. If you are using our Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using our Service for non-commercial purposes: (a) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (c) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. NOTHING IN THIS SECTION SHALL BE DEEMED AS PREVENTING GOWALLA EXPLORATION FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.
15.2 Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS GOWALLA EXPLORATION AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND GOWALLA EXPLORATION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
16.2 Governing Law.
You agree that: (a) our Service shall be deemed solely based in California; and (b) our Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
16.3 Notification Procedures and Changes to the Agreement.
16.4 Entire Agreement/Severability.
This Agreement, together with any amendments and any additional agreements you may enter into with us in connection with our Service, shall constitute the entire agreement between you and us concerning our Service. None of our employees or representatives are authorized to make any modification or addition to this Agreement. Any statements or comments made between you and any of our employees or representatives are expressly excluded from this Agreement and will not apply to you or us or your use of our Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
16.5 No Waiver.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Gowalla Exploration’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at [insert email] with any questions regarding this Agreement.
16.7 California Residents.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.