goTenna Offline Deployment Portal
End User License Agreement
(last updated December 17, 2019)
This End User License Agreement (this “Agreement”) is a legal agreement between you, the end user (“Customer,” “you,” or “your”), and goTenna, Inc. (“goTenna”, “we,” “our,” or “us”). This Agreement governs your and your Authorized Users’ (as defined below) use of the offline version of goTenna’s offline deployment portal software (the “Software”) which provides users of the goTenna Pro™ mesh networking radio device (the “Device”) with the ability to set the radio frequencies of their Devices and perform other Device administration activities. The Devices are not usable unless the user first uses the Software (or goTenna’s web-based version of the Software, which goTenna makes available under separate terms) to set radio frequencies for the Devices and enable certain other Device functionalities.
If you are entering into the Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to the Agreement, in which case the terms “Customer,” “you” or “your” refers to such entity. Customer and goTenna are each referred to herein as a “Party,” and together are referred to herein as the “Parties.” BY CLICKING THE “ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU AND YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE SOFTWARE, AND YOU MAY NOT BE ABLE TO USE YOUR DEVICES.
App Terms. We may from time to time make available certain software applications available for use with your Devices which are governed by separate terms and conditions provided with those apps (“Apps”). Your use of any Apps will be subject to the terms and conditions provided with those Apps.
Software License. Subject to the terms and conditions of the Agreement, goTenna hereby grants you a non-exclusive, non-transferable (except to an acquirer of your business) license to use the Software for the sole purpose of setting radio frequencies for, and otherwise administering, your Devices in accordance with all applicable laws, regulations and rules, and provided that you have obtained all required licenses to use the radio frequencies that you set for your Devices from the Federal Communications Commission (“FCC”) and any other applicable governmental authorities. You are solely responsible for complying with all applicable laws, regulations and rules governing your Devices’ use of the radio frequencies that you set for your Devices, and for maintaining all required FCC and other licenses to use such radio frequencies.
Authorized Users. Your access to the Software will be limited to your employees, contractors, or agents authorized by you to access and use the Software pursuant to the terms and conditions of the Agreement (“Authorized Users”). You are responsible for the acts and omissions of your Authorized Users and any other person who access and uses the Software, using any Authorized User’s Software log-in credentials.
Restrictions on Use. You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Software; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software; (iii) modify, adapt, or translate the Software; (iv) resell, distribute, or sublicense the Software or use the Software for the benefit of anyone other than you or the Authorized Users; (v) remove or modify any proprietary markings or restrictive legends placed on the Software; (vi) use the Software in violation of any applicable law, rule, or regulation, in order to build a competitive product or service, or for any purpose not specifically permitted in the Agreement; or (vii) attempt to circumvent any user or other technical controls of the Software. Any breach of this Section by Customer shall be deemed to be a material breach of the Agreement an entitle us to exercise our termination rights hereunder.
Modifications. We may from time to time make available updates and new versions of the Software available to you. Unless otherwise indicated by us, any such updates and new versions are included in the definition of Software and will be subject to the terms of this Agreement. You are responsible for using the most up-to-date version of the Software that we make available to you.
Term. The Agreement will remain in effect at all times unless and until terminated in accordance with Section 3.2 below.
Termination. You may terminate this Agreement for convenience at any time upon written notice to us and provided that you immediately cease all use of the Software. goTenna reserves the right to terminate your use of the Software immediately upon notice to you if you commit a material breach of this Agreement or if your use of the Software is in violation of any applicable law or regulation.
Effect of Termination. Upon termination of the Agreement (in whole or in part) as set forth in Section 3.2, you will (and will cause your Authorized Users to) immediately cease all use of the Software.
Survival. The following provisions will survive termination of the Agreement: Section 3.3 (“Effect of Termination”), this Section 3.4 (“Survival”), Section 4 (“Data”), Section 5 (“Ownership; Feedback”), Section 6 (“Representations and Warranties”), Section 7 (“Disclaimer”), Section 8 (“Liability”), Section 9 (“Indemnification”), Section 10 (“Assignment”), Section 13 (“Governing Law; Binding Arbitration; Class Action Waiver; Equitable Relief and Forum Selection”) and Section 14 (“Miscellaneous”).
Device Data. Subject to the terms and conditions of the Agreement, you hereby grant us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the data uploaded by you to from your Devices and otherwise collected by us in connection with your use of any services that we provide (collectively, “Device Data”) only for the purposes of (a) providing our products and services to you and (b) in an anonymized, aggregated form, for the purpose of improving our products and services. Upon any termination of this Agreement and any other agreements governing our provision of software, products and/or services to you, we may retain an archival copy of the Device Data kept in the normal course of business or for purposes of complying with applicable laws, rules and regulations and for use in an anonymized, aggregated form, for the purpose of improving our products and services.
As between Customer and goTenna, all right, title, and interest in and to the Software, any documentation and instructions related thereto, and all modifications, improvements, adaptations, enhancements, derivatives, and translations made thereto or therefrom, and all intellectual property rights therein (collectively, “goTenna Intellectual Property”) are the exclusive property of goTenna. In addition, the trademarks, service marks, and logos of goTenna are registered and unregistered trademarks or service marks of goTenna and are deemed goTenna Intellectual Property hereunder. Except as expressly granted in the Agreement, nothing herein should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the goTenna Intellectual Property, without our prior written permission specific for each such use. As between Customer and goTenna, Customer will retain all right, title, and interest in and to the Device Data.
Feedback. You or your Authorized Users may elect to provide us with feedback, comments, and suggestions with respect to the Devices, the Software and/or any other products and services we make available to you (“Feedback”). You agree that we (and our successors and assigns) will at all times be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you or any Authorized Users.
Representations and Warranties.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into the Agreement; (b) the execution, delivery, and performance of the Agreement, and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitutes a valid and binding agreement of such Party; (c) it has the full power, authority, and right to perform its obligations hereunder; and (d) its performance under the Agreement will comply with all applicable laws, rules and regulations.
Customer’s Representations and Warranties. In addition to the above, Customer represents and warrants to goTenna that it has the full right, power, and authority to collect, process, store, and transmit the Device Data, and to grant the licenses to the Device Data granted hereunder, including, without limitation, any information contained in the Device Data about the individual end users of the Devices (each, an “End User”), which may or may not be publically available, that can be used to identify or locate an individual, or any other information that is linked or linkable to an individual, such as first and last name, mailing address and zip code, telephone number, email address or internet protocol (IP) addresses. Without limiting the generality of the foregoing, Customer represents and warrants that it has obtained all necessary consents from its End Users to collect, process, store, transmit, and sublicense the Device Data under all applicable privacy and data protection laws, rules, and regulations.
Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND ANY OTHER ITEMS MADE AVAILABLE BY GOTENNA HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER GOTENNA (NOR OUR SUPPLIERS) MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT GOTENNA (AND OUR SUPPLIERS) MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Liability. UNDER NO CIRCUMSTANCES WILL GOTENNA OR ANY OF ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “GOTENNA PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS OR REVENUES, LOST DATA OR INFORMATION, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL, COSTS OF SUBSTITUTE SERVICES, OR DOWNTIME COSTS, ARISING FROM OR RELATING TO THE SOFTWARE OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF GOTENNA IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL THE MAXIMUM, CUMULATIVE LIABILITY OF THE GOTENNA PARTIES ARISING FROM OR RELATING TO THE SOFTWARE OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED FIFTY U.S. DOLLARS ($50).
Indemnification. You agree to indemnify, defend, and hold goTenna, our affiliates, and our and their respective officers, directors, employees, contractors, and agents (“goTenna Indemnitees”) harmless from and against any and all awards, settlement payments, fines and costs of defense (including reasonable attorney’s fees) incurred by any of the goTenna Indemnitees in connection with any action, claim, proceeding or investigation by any regulatory authority or other third party, to the extent arising from or related to (a) your or any of your Authorized Users’ failure to comply with any applicable laws, regulations and rules governing your Devices’ use of the radio frequencies that you set for your Devices, or failure to maintain all required FCC and other licenses to use such radio frequencies or (b) any breach of this Agreement by you.
Assignment. The Agreement may not be assigned or transferred by either Party without the prior, written consent of the other Party; provided, however, that such consent will not be required in connection with an assignment or transfer of this Agreement by either Party (a) to any of its Affiliates; or (b) in connection with any merger, consolidation, sale of equity interests, sale of all or substantially all assets, or other change of control transaction involving such Party or its business. Any attempted assignment that does not comply with the terms of this Section will be null and void.
U.S. Government Restricted Rights. If the Software is to be used by an agent or agency of the U.S. Government, then such software and related documentation made available to Customer shall be “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations (“FAR”) and its successors and 48 C.F.R. 227.7202 of the Department of Defense FAR Supplement (“DFARS”) and its successors. In accordance with FAR 12.212 or DFARS 227.7202, as applicable, any such software and documentation are made available to U.S. Government end users with only those rights set forth in the Agreement.
Export Controls. Customer will ensure that any export of the Software by or on behalf of Customer or any of its affiliates is in accordance with any applicable United States and foreign export control laws. We will provide Customer with such information regarding the Software as may be reasonably requested by Customer in its efforts to comply with the foregoing.
Governing Law; Binding Arbitration; Class Action Waiver; Equitable Relief and Forum Selection.
Governing Law. The Agreement, and any and all disputes directly or indirectly arising out of or relating to the Agreement, will be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law rules thereof.
Binding Arbitration. In the event of a dispute arising under or relating to this Agreement, the Software, the Devices and/or any other products or services that we make available to you (each, a “Dispute”), either Party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other Party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All Disputes will be resolved before a neutral arbitrator selected jointly by the Parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each Party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration shall take place in Kings County, New York. The Parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The Parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 13.4 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
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/or 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, 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.
Forum Selection. To the extent Section 13.2 does not apply (e.g., because neither Party elects to have a Dispute resolved by binding arbitration pursuant to Section 13.2, or in cases where Section 13.4 applies), then each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Kings County, New York for such Disputes, and waives any objections to the laying of venue in such courts.
Miscellaneous. The relationship of the Parties is one of independent contractors. The Agreement (including all documents incorporated by reference herein) sets forth the entire agreement of the Parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between the Parties with respect to the subject matter hereof. The Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. We may revise the terms of this Agreement from time to time upon notice to you (which notice may be provided by email to the email address that we have on file for you). By continuing to access or use the Software after such revisions become effective, you agree to be bound by the revised terms. A waiver of rights under the Agreement will not be effective unless it is in writing and signed by an authorized representative of the Party that is waiving the rights. The Parties agree that there are no third-party beneficiaries under the Agreement.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER FURTHER ACKNOWLEDGES THAT THE SECTIONS ABOVE TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, AND THAT THESE PROVISIONS AFFECT CUSTOMER’S LEGAL RIGHTS.