Terms of Service
TERMS OF SERVICE
Last modified: 10/01/20
Terms of Service
TABLE OF CONTENTS
18. Choice of Law
19. Choice of Forum
21. Force Majeure
These Terms of Service are entered into by and between You and GoManda, LLC, a Texas limited liability company ("Company," "we," or "us"). The following terms and conditions, together with the License contained in Exhibit A and any documents they expressly incorporate by reference (collectively, "Terms of Service"), govern your receipt and use of the Company’s services, including any content and functionality (the “Services”), offered on or through gomanda.com, gomanda.org, or the GoManda app mobile application (collectively, the "Website"), as a registered user.
1. Company Obligations.
During the Term, Company shall provide to You the Services as You and Company shall agree in writing (which may be by way of e-mail) during the account opening and subscription process, and as You and Company shall otherwise agree in writing (which may be by way of email) from time to time.
2. Your Obligations.
2.1 Pay to Company the fees as described in Section 3.
2.3 Abide by and comply with in full all federal, state, and local laws, ordinances, rules, and regulations which apply to your use and access of the Website and engagement of Company to provide the Services, including, without limitation, all applicable privacy information laws, ordinances, rules, and regulations.
2.4 Cooperate with Company in all matters relating to the Services as may be requested by Company for the purposes of performing the Services.
2.5 Respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform the Services in accordance with the requirements of these Terms of Service or comply with applicable law.
2.6 Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
3.1 In consideration of the provision of the Services by the Company and the rights granted to You under these Terms of Service, You shall pay the fees You and Company shall have agreed to in writing (which may be by way of e-mail) during the account opening and subscription process, and as You and Company shall otherwise agree in writing (which may be by way of email) from time to time. Payment to Company of such fees pursuant to this Section 3 shall constitute payment in full for the performance of the Services. Fees shall be payable as You and Company shall agree in writing (which may be by way of e-mail) during the account opening and subscription process, and as You and Company shall otherwise agree in writing (which may be by way of email) from time to time, for the selected Term.
3.2 You shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by You hereunder; provided, that in no event shall You pay or be responsible for any taxes imposed on, or regarding, Company's income, revenues, gross receipts, personnel, or real or personal property or other assets.
4. Limited Warranty and Limitation of Liability.
4.1 Company warrants that it shall provide the Services:
(a) In accordance with the terms and subject to the conditions set out in these Terms of Service.
(b) In accordance with generally recognized industry standards for similar services.
4.2 Company's sole and exclusive liability and Your sole and exclusive remedy for breach of this warranty shall be as follows:
(a) Company shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Company cannot cure such breach within a reasonable time (but no more than 30 days) after Your written notice of such breach, You may, at Your option, terminate the Terms of Service by serving written notice of termination in accordance with Section 7.2.
(b) In the event these Terms of Service are terminated pursuant to Section 4.2(a) above, Company shall within 60 days after the effective date of termination, refund to You any fees paid by You as of the date of termination of these Terms of Service, less a deduction equal to the fees for receipt or use of such Services up to and including the date of termination on a pro-rated basis.
4.3 COMPANY MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 4.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTY OF TITLE, OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
5. Intellectual Property.
All intellectual property rights, including, without limitation, copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in, to, and under all information, technology, software, applications, data, documents, work product, and other materials that are provided to You under or in connection with these Terms of Service or created, prepared, or provided by or on behalf of the Company in the course of performing the Services (collectively, the "Deliverables") shall be owned exclusively by Company. During the Term, Company hereby grants You a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free, revocable basis to the extent necessary to enable You to make reasonable use of the Services and/or the Website.
From time to time during the Term of this Terms of Service, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as "confidential," or if disclosed orally, is identified as confidential when disclosed and within 60 days thereafter, is summarized in writing and confirmed as confidential ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 6; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Terms of Service; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Terms of Service.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section 6 only, Receiving Party's Group shall mean the Receiving Party's affiliates and its or their employees, officers, directors, shareholders, members, managers, agents, attorneys, accountants, and financial advisors.
7. Term, Termination, and Survival.
7.1 These Terms of Service shall commence upon Your acceptance of these Terms of Service and payment of the fees in accordance with Section 3 and shall continue thereafter for a period of time for which the applicable fee has been paid (“Term”) unless sooner terminated pursuant to Section 4.2 or Section 7.2. Unless either party hereto notifies the other party in writing (which may be by way of email) within 30 calendar days prior to the end of the then-current Term, these Terms of Service shall automatically and without notice shall renew for successive Terms in accordance with Company’s then-current fee schedule for is provision of the Services.
7.2 Either Party may terminate this Terms of Service, effective upon written notice to the other Party (the "Defaulting Party") if the Defaulting Party:
(a) Materially breaches these Terms of Service, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.4 The rights and obligations of the Parties set forth in this Section 7 and in and any right or obligation of the Parties in these Terms of Service which, by its nature, should survive termination or expiration of these Terms of Service, will survive any such termination or expiration of this Terms of Service.
8. Limitation of Liability.
8.1 IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.2 IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY IN THE CALENDAR YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Entire Agreement.
All notices, requests, consents, claims, demands, waivers and other communications under these Terms of Service (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its email address. For You, such email address for You shall be the email You provided during your registration on the Website (or as you update in your user account). Such email address for Company shall be firstname.lastname@example.org. Except as otherwise provided in this Terms of Service, a Notice is effective only (a) on receipt by the receiving Party and (b) if the Party giving the Notice has complied with the requirements of this Section 1010.
If any term or provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms of Service to effect the original intent of the parties as closely as possible.
No amendment to or modification of these Terms of Service is effective unless it is in writing and signed by an authorized representative of each party.
No waiver by any party of any of the provisions of these Terms of Service shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms of Service, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms of Service shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
You shall not assign, transfer, delegate or subcontract any of Your rights or delegate any of Your obligations under these Terms of Service without the prior written consent of Company. Any purported assignment or delegation in violation of this Section 1414 shall be null and void. No assignment or delegation shall relieve You of any of Your obligations under these Terms of Service. Company may assign any of its rights or delegate any of its obligations to any affiliate or to any person at any time without Your consent.
15. Successors and Assigns.
These Terms of Service are binding on and inure to the benefit of the parties to these Terms of Service and their respective permitted successors and permitted assigns.
16. Relationship of the Parties.
The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the Services by Company shall be under its own control, You being interested only in the results thereof. The Company shall be solely responsible for supervising, controlling and directing the details and manner of the provision of the Services. Nothing in these Terms of Service shall give You the right to instruct, supervise, control, or direct the details and manner of the provision of the Services. Nothing contained in these Terms of Service shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17. No Third-Party Beneficiaries.
These Terms of Service benefit solely the parties to these Terms of Service and their respective permitted successors and assigns and nothing in these Terms of Service, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Service.
18. Choice of Law.
These Terms of Service and all related documents including all exhibits attached hereto, and all matters arising out of or relating to these Terms of Service, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
19. Choice of Forum.
Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms of Service, including all exhibits, schedules, attachments and appendices attached to these Terms of Service, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the federal or state courts of the State of Texas sitting in the City of Austin, Travis County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of Texas sitting in the City of Austin, Travis County. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
20. WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THESE TERMS OF SERVICE, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THESE TERMS OF SERVICE, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THESE TERMS OF SERVICE.
21. Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms of Service, for any failure or delay in fulfilling or performing any term of these Terms of Service (except for any obligations of You to make payments to Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms of Service; (f) national or regional emergency; (g) shortage of adequate power or transportation facilities; (h) epidemics, such as COVID-19 (coronavirus); and (i) other similar events beyond the control of the Impacted Party.
The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 21, the other party may thereafter terminate these Terms of Service upon 30 days' written notice.
Notwithstanding the foregoing, this Section 21 shall not apply to Your failure or delay in payment of the fees hereunder.