Legal - Terms of Service (Apps)
Last Updated: Sept 12, 2019
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
We reserve the right, at our sole discretion, to modify or discontinue the Apps, or terminate your use of any App or the Products at any time and without prior notice.
The Apps. The Apps are available only to those individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If you are under the age of 13, you may use the App only with the consent of your parent or guardian. If you reside outside of the United States you will not be able to download the Apps.
The Apps are intended for use with certain of the Products. You are solely responsible for selecting and purchasing the Products. The ATAK Plug in App is restricted to users of TAK, CIVTAK and such other ATAK users from time to time.
License to Use the Apps. goTenna hereby grants you a limited, non-exclusive, non-transferable license to download and install a copy of the Apps
Accessing and Downloading the Apps.
(a) If you download an App from the Apple, Inc. (“Apple”) application store (such app, the “Apple App”) (i) you agree you will use the Apple App only on an Apple-branded product that runs iOS (Apple’s proprietary operating system software) and as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Further, you acknowledge and agree the following terms apply to any Apple App:
- The license granted to you for the App is limited to a non-transferable license to use the App on any Apple-branded products that the you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such may be accessed and used by other accounts associated with the purchaser via family sharing or volume purchasing.
- goTenna is solely responsible for providing any maintenance and support services with respect to the App, as specified in herein, or as required under applicable law. goTenna and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- goTenna is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be goTenna’s sole responsibility.
- goTenna and you acknowledge that goTenna, not Apple, are responsible for addressing any of your claims or any third party relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the App’s use of Apple’s “HealthKit” and “HomeKit” frameworks.
- goTenna and you acknowledge that, in the event of any third party claim that the App or your possession and use of an App infringes that third party’s intellectual property rights, goTenna, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- 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 must comply with applicable third party terms of agreement when using the App, e.g., if goTenna has a VoIP application, then you must not be in violation of their wireless data service agreement when using the App.
Additional information regarding Apple’s Instructions for Minimum Terms of Developer’s End User License Agreement is available here: https://www.apple.com/legal/internet-services/itunes/dev/minterms/. We reserve all rights in and to the Apps not expressly granted to you under the referenced terms of service.(b) If you download an App for devices from the Google LLC ("Google") application store (such app, the "Google App"), you agree you will use the Google App only: (i) on an product that runs Android (Google’s proprietary operating system software); and (ii) as permitted by the "Usage Rules" set forth in the Google Play Store Terms of Service.
Guidelines. By using the Apps, you agree to comply with these user guidelines (“Guidelines”):
- You will comply with all applicable laws in your use of the Apps and will not use the Apps for any unlawful purpose;
- You will not access or use the Apps to collect any market research for a competing business or create (or attempt to create) a competing service;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with, or attempt to interrupt the proper operation of, the Apps through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the Apps through hacking, password or data mining, or any other means;
- You will not decompile, reverse engineer, or disassemble the Apps or any portion thereof, or any software or other products or processes accessible through the Apps;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Apps;
- You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Apps, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
- You will not upload, post, e-mail, transmit, or otherwise make available any User Content (as defined below) that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, 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.
If you find something that violates our Guidelines, please let us know and we will review it. We reserve the right, in our sole and absolute discretion, to deny you access to the Apps, or any portion of the Apps, without notice and without liability to you, if you fail to adhere to these guidelines.
Fees. goTenna does not charge for your access to, and usage of, the Apps unless you choose premium features which may be available from time to time.
The Apps may require data access, and the provider of such data access (e.g., network operator, wireless carrier, etc.) for your device may charge you data access and other fees in connection with your use of an App, including, without limitation, wireless carrier messaging and other communication, messaging, and data fees and charges, as applicable. You shall be responsible, at your sole cost and expense, for obtaining and paying for wireless access, and under no circumstances will goTenna be responsible for any such data access fees or charges.
Intellectual Property. goTenna and its licensors are the sole owners of all right, title and interest in the (i) Apps including, without limitation, all software and other technology (in all forms and media), and all intellectual property rights therein, and (ii) all text, graphics, images, sound recordings, audiovisual works, descriptions of the Products and the Apps, and other material (the “Content”) provided by us or on our behalf. The Apps and the Content are protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
You may use the Apps and view all Content for your own personal, non-commercial use. No other use is permitted without our prior written consent. goTenna and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content. You must retain all copyright and other proprietary notices contained in the original Apps and Content, and on any copy you make of the Content. You are not authorized to copy the Apps or any part thereof. You may not sell, transfer, assign, license, sublicense, or modify the Apps or Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Apps or the Content in any way for any public or commercial purpose. The use or posting of the Apps or the Content anywhere else including on other websites or in a networked computer environment for any purpose is expressly prohibited.
The trademarks, service marks, and logos of goTenna (“goTenna Trademarks”) used and displayed on the Apps are registered and unregistered trademarks or service marks of goTenna. Other company, product, and service names used and displayed on the Apps may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the goTenna Trademarks, the “Trademarks”). Nothing in these Terms 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 the goTenna Trademarks inures to our benefit.
Elements of the Apps and the Content 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. The Apps and the Content shall not be retransmitted, in whole or in part, without our express, written consent for each and every instance.
Procedure for Claims Under the Digital Millennium Copyright Act. We respect the intellectual property rights of others and attempt to comply with all relevant laws, and expect our users to do the same. We will review all claims of copyright infringement received and remove any Content or user submissions deemed to have been posted or distributed in violation of any such laws. We may, in appropriate circumstances and at our discretion, disable and/or terminate the accounts of users who may be infringing the intellectual property of a third party.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any notification of claimed infringement, which may be given under that Act is as follows:
81 Willoughby St., 4th floor,
Brooklyn, NY 11201.
If you believe that your work has been copied on any of the Apps in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the App where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) 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; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
User Content. The Apps may provide you and other users with the ability to send messages or post content (together, "User Content") to or for other users and non-users. We are under no obligation to review any User Content and assume no responsibility or liability relating to any such User Content. Notwithstanding the above, we may from time to time monitor the User Content and may decline to accept, and/or remove, any User Content. You expressly acknowledge and agree that you are responsible for any User Content you submit, including the legality, reliability, appropriateness, originality and copyright of any such User Content and that by posting User Content, there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personal information that you may make available. YOU, AND NOT GOTENNA, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT, VIEW OR USE VIA THE APPS.
You retain all copyrights and other intellectual property rights in and to your User Content. With respect to any User Content you submit or make available through the Apps, you grant us and our sublicensees a perpetual, irrevocable, non-terminable, worldwide, royalty-free, transferable and non-exclusive license, with the right to sublicense through multiple tiers, to use, copy, distribute, publicly display, modify, adapt, publish, create derivative works, publicly perform, and otherwise use or exploit (including for profit) and sublicense such User Content or any part of such User Content, and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.
If you submit User Content to us, each such submission constitutes a representation and warranty to goTenna that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under the prior paragraph, and that it and its use by goTenna and its content partners as permitted by these Terms does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content, or any other content that violates our Guidelines. Please take care with the User Content that you provide.
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 and communications 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, the Apps that incorporate such information without compensation or attribution to you.
Limit of Liability. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE APPS OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES NOT ATTRIBUTABLE TO PERSONAL INJURIES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE APPS OR THE CONTENT SHALL BE LIMITED TO FIFTY UNITED STATES DOLLARS (US $50).
External Sites. The Apps 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.
You agree to defend, indemnify, and hold us and our owners, members, officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (x) your breach of the Agreement; (y) your misuse of the Content or the Apps; and/or (z) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter 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.
Compliance with Applicable Law. The Apps are intended for use in the United States. We make no claims concerning whether the Apps or any Content may be downloaded, viewed, or be appropriate for use outside of the United States. We also make no claims concerning whether any goTenna Products are appropriate for sale outside of the United States. If you access or use the Apps 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.
Class Action Waiver. 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.
Equitable Relief. You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement and without posting a bond, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Delaware for purposes of any such action by us.
Copyright 2019 goTenna, Inc. All rights reserved.