Last updated March 1, 2017
To receive one of the Gomeco Services you first need to complete and submit to Gomeco Powered, Inc. (“we” or “us” or “Gomeco”) a subscription order for that Gomeco Service on our standard Order Form on the Gomeco Website (the “Order Form”) and Gomeco will need to accept that submitted Order Form for it to become effective. Order Forms should be completed and submitted by you electronically on the Gomeco Website and you will receive an electronic notification from Gomeco whether the submitted Order Form has been accepted or rejected by Gomeco. Although it is very rare for Gomeco to reject an Order Form, Gomeco reserves the right to do so in its sole discretion. You can always submit follow-on subscription orders for additional Gomeco Services by completing and submitting another Order Form and those also will need to be accepted by Gomeco to become effective. In these Terms, we call all these submitted and accepted Order Forms the “Gomeco Order(s)”. To receive a Gomeco Service you need to have a separate active subscription in place (a “Subscription”) for that Gomeco Service.
The Gomeco Order for a Gomeco Service will state the total number of physical rooms that may be reserved or “booked” under that Gomeco Service (“Bookable Rooms”). The Gomeco Service covered by your Subscription may only be accessed and used by individuals that have been authenticated on the Gomeco Website as one of your Users under your Subscriptions (your “Users”). However, Gomeco does not limit the number of individuals who can be authenticated on the Gomeco Website as your Users under your Subscriptions.
You and your Users have a non-exclusive, non-transferable, right to access and use the Gomeco Platform solely to be able to access and use the Gomeco Services covered by your active Subscriptions (“Your Subscription Services”), but all subject to the terms of Our Agreement. Access and use by you and your Users of the Gomeco Platform and Your Subscription Services is subject to all the limitations and restrictions in Our Agreement, including for each Subscription the maximum number of Bookable Rooms covered by that Subscription as stated in the Gomeco Order for that Subscription. If there is an unauthorized access or use of the Gomeco Platform or any Gomeco Service by you or any of your Users, Gomeco has the right immediately to disable or suspend access to or use of the Gomeco Platform and any or all of Your Subscription Services by you or any one or more of your Users.
a. Authentication of Users. Each individual who is to be one of your Users must be authenticated on the Gomeco Website as one of your Users before that individual will be allowed to access or use the Gomeco Platform or Your Subscription Services.
b. Your Responsibilities
You are responsible for providing and paying all fees and charges for the equipment, internet access and connections (the speed of which may have a significant impact on the responsiveness of the Gomeco Platform and Your Subscription Services) and services (other than Your Subscription Services) that you and your Users need to access, download, install, and use the Gomeco Platform and Your Subscription Services. Although we recommend types of equipment, Gomeco does not guarantee that the Gomeco Services are accessible on or from any particular equipment or device or with any particular software or service plan and we are not responsible at all for any equipment, whether or not recommended by us.
You acknowledge that utility and performance of the Gomeco Platform and Your Subscription Services is based on and requires that you have the necessary equipment installed and functioning properly. To the extent that you don’t comply with the requirements in this Section 5(b), the Gomeco Platform and Your Subscription Services may not be able to function or to convey accurately the intended information to you and your Users and Gomeco isn’t responsible for that failure or for any costs associated with restoring systems and services.
You and your Users are allowed to access and use the Gomeco Platform and Your Subscription Services only for your internal business purposes and in accordance with all applicable laws, rules and regulations (including those relating to internet, data, and email privacy).
You agree that you will not, and you won’t allow any of your Users to, access or use the Gomeco Platform or Your Subscription Services for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third party privacy or other rights.
You will not use, and you will prohibit your Users from using, the Gomeco Platform and Your Subscription Services to transmit, store or publish any content that is obscene, libelous, threatening or unlawful or that infringes or violates any rights. Subject to the terms and conditions of Our Agreement, we may impose limits on your and your Users’ bandwidth use and file hosting storage used by you and your Users with the Gomeco Platform or impose additional fees or throttle your file hosting with the Gomeco Platform if you or your Users exceed such limits. We also reserve the right to disable immediately your and your Users’ access to the Gomeco Platform in the event of your or one of your User’s unauthorized use, disruption or abuse of Gomeco's resources (as determined by Gomeco).
You are responsible for all activities of you and your Users that occur within, through or as a result of your or their access or use of the Gomeco Platform or Gomeco Services, whether or not such activities are authorized or known by you. You are also responsible for all activities that occur within, through or as a result of access or use of the Gomeco Platform or Gomeco Services by a person who is not one of your Users but who accesses or uses the Gomeco Platform or Gomeco Services using your or one of your User’s login credentials or identity, whether or not such access, use or activities are authorized or known by you. Please do not share your, or allow any of your Users to share, any of their login credentials, including passwords, with anyone else.
You and your Users must each comply with our Acceptable Use Requirements when accessing or using the Gomeco Platform or any of the Gomeco Services. If our Acceptable Use Requirements Use require you or your Users to implement specific safeguards, you agree to implement those safeguards and you will require all your Users to comply as well.
You agree that, without our express preapproval, you will not, and you won’t allow any of your Users to: (a) use or launch any automated system that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (b) access or use the Gomeco Platform or the Gomeco Services in any manner that damages, disables, overburdens, or impairs the Gomeco Platform or Gomeco Services or interferes with our or any other customer’s or user’s access to or use of the Gomeco Platform or Gomeco Services; or (c) attempt to gain unauthorized access to or use of the Gomeco Platform or the Gomeco Services.
You will notify us right away of any unauthorized use of any of your or your Users’ login credentials, including passwords, or identifications.
If you or any of your Users access or use the Gomeco Platform or Gomeco Services on a mobile device, you are solely responsible for all message and data fees charged by your or your User’s wireless service provider. Please contact your mobile service provider for pricing plans and details. Gomeco is not liable for any delays, interruptions or other transmission errors related to your or your User’s devices, services or wireless service providers.
The Gomeco Platform and Gomeco Services are protected by intellectual property laws, and except as specifically allowed in these Terms, you agree not to, and you won’t allow any of your Users to: distribute, sell, assign, encumber, transfer, rent, lease, sublicense, modify, or time-share the Gomeco Platform or the Gomeco Services; use any of the Gomeco Platform or Gomeco Services in any service bureau arrangement or on behalf of any third party; reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify any of the Gomeco Platform or Gomeco Services; or authorize any third party to do any of the things described in this paragraph.
You agree not to, and you won’t allow any of your Users to: remove or change any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in any of the Gomeco Platform or the Gomeco Services; decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any of the Gomeco Platform or the Gomeco Services; use any means to discover the source code of the Gomeco Platform or the Gomeco Services or to discover the trade secrets in the Gomeco Platform or the Gomeco Services; or otherwise circumvent any functionality that controls access to or otherwise protects the Gomeco Platform or the Gomeco Services.
c. Our Responsibilities
We are responsible for providing to you and your Users access to and use of the Gomeco Platform and Your Subscription Services as described in these Terms and the other parts of Our Agreement and all United States federal and state laws, rules and regulations applicable to our performance of Your Subscription Services.
We will maintain administrative, physical and technical safeguards that we intend to protect the security, confidentiality and integrity of information that you provide to or through Your Subscription Services (including Your Content, which is described below).
We may modify the Gomeco Platform or Gomeco Services from time to time, including by adding or deleting features and functions, in an effort to improve the experience of you and other customers and users; but we are not required to do so. If we believe any improvements or modifications will significantly and harmfully affect how you and your Users access and use the Gomeco Platform or Your Subscription Services or how the Gomeco Platform or Your Subscription Services perform, we will notify you in advance.
We are not responsible for the content of Non Gomeco Services (as defined below) or for losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees (“Claims”) arising from your or your Users access or use of content, information, web sites, software, services and other materials of third parties with which you or your Users may interact when you or your Users access or use the Gomeco Platform or Gomeco Services (collectively, “Non Gomeco Services”). YOU AND YOUR USERS WILL ACCESS OR USE ANY NON ROBIN SERVICES ENTIRELY AT YOUR AND THEIR OWN RISK AND YOU ARE RESPONSIBLE FOR YOUR AND YOUR USERS COMPLYING WITH TERMS AND CONDITIONS APPLICABLE TO YOUR OR YOUR USERS’ ACCESS OR USE OF NON ROBIN SERVICES.
Gomeco will provide you with the user documentation related to Your Subscription Services, the Gomeco Platform and necessary equipment (the “Gomeco Documentation”).
Availability: We try to make the Gomeco Platform and Your Subscription Services available to you and your Users 24 hours per day, 7 days per week, except for scheduled or emergency down-time for maintenance, repair, upgrades or other changes. We will make reasonable efforts to minimize the amount of downtime.
Support: Support is included in your Subscription for Gomeco Services only if the Gomeco Website expressly states that support is included as part of the Subscription for that Gomeco Service and in that case only the support stated in the Gomeco Website to be included will be provided to you and your Users without additional charge.
Subject to your compliance with Our Agreement, we grant you and your Users a limited, non-exclusive, non-transferrable, non-sublicensable license to download, install, and run a copy of the Gomeco App on mobile devices. Except as expressly permitted in these Terms, you and your Users may not: (a) copy, modify, or create derivative works based on the Gomeco App; (b) distribute, transfer, sublicense, lease, lend, or rent the Gomeco App to any third party; or (c) reverse engineer, decompile, or disassemble the Gomeco App. Gomeco reserves all rights to the Gomeco App not expressly granted to you and your Users under these Terms.
If you or one of your Users access or download the Gomeco App from any app store or distribution platform (like the Apple Store, Google Play, or Amazon Appstore) (each, an “App Provider”), then you acknowledge and agree, on behalf of yourself and that User, that you and that User must comply with the applicable terms and conditions and other requirements of such App Provider and that:
These Terms are between you and Gomeco, and not with App Provider, and that, as between Gomeco and the App Provider, Gomeco is solely responsible for the Gomeco App.
You are responsible for (a) your and your Users installing the Gomeco App on mobile devices that meet the hardware, software, Internet and cellular service requirements specified in the applicable Gomeco Documentation and (b) obtaining Internet access for those mobile devices to enable the Gomeco App to communicate with the Gomeco Platform via the Internet.
App Provider has no obligation to furnish any maintenance and support services for the Gomeco App.
App Provider is not responsible for addressing any claims you or your Users have or any claims of any third party relating to the Gomeco App or your or your Users’ possession and use of the Gomeco App, including by not limited to: (i) product liability claims; (ii) any claim that the Gomeco App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Gomeco App, or your or your User’s possession and use of the Gomeco App, infringes that third party’s intellectual property rights, the Gomeco App Provider will not be responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim.
App Provider and its subsidiaries are third party beneficiaries of these Terms as related to your and your Users’ license of the Gomeco App, and when you accept these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your and your Users’ license of the Gomeco App against you and your Users as a third party beneficiary of these Terms.
You and your Users must also comply with all applicable third party terms of service when using the Gomeco App.
The Gomeco Services allow you and your Users to upload, transmit and use certain required information and other content to and through your and their access and use of the Gomeco Platform and Your Subscription Services (in Our Agreement we call all of this “Your Content”). You are responsible for the accuracy, quality, legality and the way you and your Users acquire Your Content. You understand that Gomeco will use Your Content to provide Your Subscription Services to you. You have or will obtain all rights necessary to provide Your Content to Gomeco and for Gomeco’s use of Your Content as provided under Our Agreement.
a. Excluded Data. You agree that neither you nor any of your Users, employees or agents will provide any of the following (in any format) to Gomeco or upload any of the following (in any format) in using the Gomeco Services or accessing the Gomeco Platform: any personal health information; biometric information; social security numbers; government identification numbers; credit report information, debit or credit or payment card information; or (other than your payment information provided in a Gomeco Order) bank or other financial account information or other financial or credit data (collectively, “Excluded Data”). Notwithstanding anything to the contrary in Our Agreement, except to the extent required by applicable law that cannot be waived, we won’t have any obligation or liability under Our Agreement or otherwise with respect to Excluded Data.
b. Your Data; License. As between you and your Users, on the one hand, and Gomeco, on the other hand, you are the sole owner of all information or data relating to you or your Users or your business that is communicated to or collected by Gomeco or the Gomeco Platform under Our Agreement (in these terms we call all of this "Your Data" but the Term “Your Data” expressly excludes any Excluded Data and Contributions (as defined below)), and our Agreement does not provide Gomeco with title or ownership of Your Data. Notwithstanding the foregoing, you grant to Gomeco a perpetual, royalty free license to copy, use, distribute, display and disclose Your Data, Your Content and Excluded Data prior to and after the End Date: (i) to provide Your Subscription Services to you and your Users and otherwise perform Gomeco’s obligations under Our Agreement; (ii) to monitor for security and compliance purposes access and use by you and your Users of the Gomeco Platform and Your Subscription Services; (iii) to perform statistical and other analysis, including to improve the Gomeco Platform and the Gomeco Services, but in doing those analyses we won’t publicly disclose any of Your Data or Your Content except in an aggregated form that would not reasonably be expected to permit a third party to identify the disclosed information as associated with you or any of your Users; and (iv) to enforce the terms of Our Agreement. The license granted in this Section is sublicensable and assignable by Gomeco to any of its affiliates, co-marketers and co-developers.
d. Privacy Shield. Gomeco has certified to the U.S. Department of Commerce that Gomeco complies with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of personal information transferred from the European Union to the United States.
e. What Happens to Your Data After the End Date. Gomeco will keep all Your Data for a period of 90 days after the End Date (as defined below), and, if you request it of Gomeco in writing during that 90 days, Gomeco will transfer to you a copy of Your Data that has been kept by Gomeco. Gomeco will have no obligation to keep any of Your Data after the end of that 90 days (though it may keep a copy solely for purposes of exercising its license in Section 8(b)).
a. Confidential Information. Each party shall retain in confidence all non-public information and know-how disclosed pursuant to Our Agreement, whether oral or in writing or electronically, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/or confidential (“Confidential Information”), using at least the same standard of care used by it to protect its own confidential information (but in no event less than a reasonable standard of care). Excluded Data is not part of Your Confidential Information.
b. Exclusions. The parties’ obligations under Section 9(a) don’t apply to Confidential Information that the receiving party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to disclosure by the disclosing party; (iii) subsequent to disclosure by the disclosing party, is rightfully obtained by the receiving party from a person in lawful possession of such Confidential Information; (iv) is independently developed by the receiving party without use of or reference to Confidential Information of the disclosing party; or (v) is required to be disclosed by law (but only to the extent of such required disclosure).
a. Gomeco Intellectual Property. The Gomeco Platform and the Gomeco Services, including the "look and feel" (e.g., text, graphics, images, logos), content and other material, are protected under copyright, trademark and other laws. You acknowledge and agree that Gomeco and its licensors own all right, title and interest in and to the Gomeco Platform and the Gomeco Services, and of all copyright, trade secret, patent, trademark and other intellectual property rights in and to the Gomeco Platform and the Gomeco Services (including any modifications or improvements made to the Gomeco Platform and the Gomeco Services in the course of providing any Gomeco Services to you), and Our Agreement does not provide you with title or licenses to or ownership of the Gomeco Platform or the Gomeco Services, or any copies or modifications or improvements, or to or under any of Gomeco’s copyrights, patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights, but you and your Users have only a right of limited, remote access and use of the Gomeco Platform and Your Subscription Services as expressly permitted and limited by Our Agreement.
. Prohibited Actions. You will not, and will not allow any of your employees, agents or Users to, copy, market, distribute, export, translate, reverse engineer, unencrypt, decompile, disassemble, or derive the source code, application source code, or data base design for, modify, alter, adapt or create derivative works from, duplicate or re-engineer or use internal applications that mimic the functionality of, transmit, merge, modify, transfer, adapt, loan, rent, lease, assign, share, redistribute, host, hyper-link to, frame or store all or any portion of the Gomeco Platform and the Gomeco Services. You also will not, and will not allow any of your employees, agents or Users to, remove, obfuscate or alter any patent, copyright, trademark or other intellectual property or proprietary notices of Gomeco. You will not, and will not allow any of your employees, agents or Users to, use any device, software or routine to interfere or attempt to interfere with the proper working of the Gomeco Platform and the Gomeco Services; (ii) using the Gomeco Platform or any Gomeco Services to display or share any libelous, defamatory or inappropriate information; or (iii) using the Gomeco Platform and the Gomeco Services except in strict compliance with all laws, rules, regulations, privacy policies, contracts, agreements, judgments, orders and decrees binding on you, your Users or applicable to your business. You will not, and will not allow any of your employees, agents or Users to, take any action(s) inconsistent with our ownership of our intellectual property.
c. Contributions. Any feedback, evaluations, suggestions and comments that you or your employees, agents or Users provide to Gomeco (in whatever format) on the Gomeco Platform or Gomeco Services, and all improvements, updates, modifications or enhancements to the Gomeco Platform and the Gomeco Services (including any based on or resulting from any of that feedback, evaluations, suggestions or comments) are owned exclusively by Gomeco. You agree that any contribution of feedback, evaluations, suggestions and comments and any resulting improvements, updates, modifications, and enhancements (collectively “Contributions”) does not give you or any of your employees, agents or Users any rights in or to the Gomeco Platform or the Gomeco Services. These Contributions are all property of Gomeco and Gomeco may use and disclose the Contributions without notice or compensation to you or your employees, agents and Users. You, on your behalf and on behalf of your employees, agents and Users, irrevocably assign to Gomeco any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that you or they may have in and to any and all Contributions. If we request, you will, and will cause your employees, agents and Users to, execute any document, registration or filing required to give effect to the foregoing assignment.
a. Amount of Subscription Fees. The Gomeco Order for a Subscription states the amount of the subscription fees and any other fees that must be paid by you to Gomeco for that Subscription and Your Subscription Service provided as part of that Subscription (the “Subscription Fee”) but Gomeco reserves the right to change the amount of the Subscription Fee that is payable for a renewal term of a Subscription so long as you get notice of that change in Subscription Fee at least 30 days before the start of the next renewal term for that Subscription. Except as expressly provided in the Gomeco Order for a Subscription, renewal of promotional or one-time priced Subscriptions will be at Gomeco’s applicable list price in effect at the time of the applicable renewal.
b. When Subscription Fees Are Due. You are required to pay the applicable Subscription Fee for a Subscription in advance on or before the first day of the term of that Subscription. You are also required to pay the applicable Subscription Fee for each renewal term of a Subscription in advance on or before the first day of the renewal term.
c. Methods of Payment. You will pay the Subscription Fees due from you for a Subscription by using the payment method specified in the Gomeco Order for that Subscription.
d. Taxes are Not Included. All payments to Gomeco under Our Agreement are net of any applicable sales, use and other taxes, and you are required to pay directly to the applicable tax authority (or reimburse Gomeco) any taxes due in connection with Our Agreement, excluding only taxes on Gomeco’s income. If you or your Users are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
e. Overdue Amounts. Gomeco reserves the right to charge and collect an overdue payment fee on any unpaid, past-due Subscription Fees or other amount due to it under Our Agreement equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law, calculated from the date such overdue payment was first due until it is paid in full. Payments are applied, at Gomeco’s discretion, first to payment of the overdue payment fee and then to payment of the overdue amount.
f. No Cash Refunds. Gomeco is never required to provide you a cash refund or credit of any Subscription Fees or other amounts paid by you, except as expressly required by Section 14. If you and Gomeco agree to downgrade the level of Gomeco Services covered by a Subscription, Gomeco may decide, in its complete discretion, to allow you to pay a lower, pro-rated amount at renewal, but you won’t be entitled to a cash refund at any time, except as expressly required by Section 14.
We warrant that we have validly entered into Our Agreement and have the legal right and power to do so. You warrant that (i) you have validly entered into Our Agreement and have the legal right and power to do so and (ii) you have all necessary rights, licenses, consents and permissions to disclose and use Your Content and Your Data with Your Subscription Services and to grant to us the license in Section 8(b) and the rights in Section 10(c).
a. DISCLAIMER OF WARRANTIES.TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ROBIN PLATFORM AND THE ROBIN SERVICES ARE MADE AVAILABLE "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR ALL RISK OF YOUR AND YOUR USERS ACCESSING AND USING THE ROBIN PLATFORM AND THE ROBIN SERVICES. ROBIN, ON BEHALF OF ITSELF AND ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE VENDORS, LICENSORS, AGENTS, AND SUPPLIERS (“DISTRIBUTORS”), GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO THE ROBIN PLATFORM AND THE ROBIN SERVICES. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THESE TERMS CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, ROBIN AND ALL DISTRIBUTORS EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ROBIN DOES NOT WARRANT (A) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THE REQUIREMENTS OF YOUR USERS, (B) THAT ACCESS, USE AND OPERATION OF THE ROBIN PLATFORM AND THE ROBIN SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE ROBIN PLATFORM AND THE ROBIN SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATIONS OR ANY PARTICULAR SYSTEMS OR DEVICES, (D) THAT DEFECTS IN THE ROBIN PLATFORM AND THE ROBIN SERVICES WILL BE CORRECTED OR (E) THAT THE ROBIN PLATFORM AND THE ROBIN SERVICES WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES. ANY ORAL OR WRITTEN ADVICE PROVIDED BY ROBIN OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
b. LIMITATIONS ON LIABILITY TO THE EXTENT PERMITTED BY APPLICABLE LAW, ROBIN’S TOTAL LIABILITY WITH RESPECT TO ANY CLAIM (OR GROUP OF RELATED CLAIMS) BY YOU ARISING OUT OF OR RELATED TO OUR AGREEMENT, INCLUDING THE DELIVERY, ACCESS, USE, AVAILABILITY, LACK OF AVAILABILITY OR PERFORMANCE OR NON-PERFORMANCE OF THE ROBIN PLATFORM AND THE ROBIN SERVICES (WHETHER SUCH CLAIM IS FOR BREACH OR NON COMPLIANCE OR OTHERWISE AND WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY), WILL NOT EXCEED THE AMOUNT PAID BY YOU TO ROBIN UNDER OUR AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST ASSERTION OF THAT CLAIM (OR THE FIRST OF THE GROUP OF RELATED CLAIMS); BUT ROBIN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO OUR AGREEMENT, INCLUDING THE DELIVERY, ACCESS, USE, AVAILABILITY, LACK OF AVAILABILITY OR PERFORMANCE OR NON-PERFORMANCE OF THE ROBIN PLATFORM AND THE ROBIN SERVICES (WHETHER SUCH CLAIM IS FOR BREACH OR NON COMPLIANCE OR OTHERWISE AND WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY), WILL NEVER EXCEED AND WILL UNDER ALL CIRCUMSTANCES BE CAPPED AT AND LIMITED TO THE TOTAL AMOUNT THAT HAS BEEN PAID BY YOU UNDER OUR AGREEMENT. THIS LIMITATION WILL NOT AND DOES NOT LIMIT YOUR PAYMENT OBLIGATIONS.
c. LIMITATIONS ON DAMAGES TO THE EXTENT PERMITTED BY APPLICABLE LAW, ROBIN WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, LOSS OF USE, LOSS OF DATA, LOSS OF CONTENT, LOSS OF PROFITS OR REVENUE, LOSS OF GOODWILL OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER OUR AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH OUR AGREEMENT OR THE DELIVERY, ACCESS, USE, AVAILABILITY, LACK OF AVAILABILITY OR PERFORMANCE OR NON-PERFORMANCE OF THE ROBIN PLATFORM AND THE ROBIN SERVICES (WHETHER SUCH CLAIM IS FOR BREACH OR NON COMPLIANCE OR OTHERWISE AND WHETHER IN CONTRACT, STRICT LIABILITY, NEGLIGENCE OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY), EVEN IF ROBIN HAS BEEN ADVISED OF THE POSSIBILITY OF THAT DAMAGE OR IF YOUR REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. YOU AGREE NOT TO ASSERT A CLAIM FOR OR SEEK TO RECOVER ANY DAMAGES NOT PERMITTED UNDER THIS SECTION. THIS DISCLAIMER OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You expressly agree that the above limitations of liability and limitations on damages, together with the other provisions in these Terms and Our Agreement that limit liability and damages, are essential parts of these Terms and Our Agreement and that Gomeco would not be willing to grant you the rights set forth in these Terms and Our Agreement without your agreement to these limitations of liability and limitations on damages.
NOTHING IN OUR AGREEMENT EXCLUDES EITHER PARTY’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED UNDER APPLICABLE LAW. NOTHING IN THIS AGREEMENT LIMITS EITHER PARTY’S LIABILITY FOR MATTERS FOR WHICH LIABILITY CANNOT BE SO LIMITED UNDER APPLICABLE LAW.
If Your Subscription Service or the Gomeco Platform becomes or, in our opinion, may become the subject of any claim, suit or proceeding for infringement of any United States or European Union patent, trademark, copyright or other intellectual property right under United States or European Union law, Gomeco will, at its option and expense, either (i) obtain for you any additional right required under United States or European Union law for you to access and use the Gomeco Platform and Your Subscription Service, (ii) replace Your Subscription Service with a non-infringing Gomeco Service, (iii) modify the Gomeco Platform or Your Subscription Service so that it does not infringe, or (iv) terminate the Subscription for Your Subscription Service, and refund the aggregate Subscription Fees paid by you to Gomeco for that Subscription during the period of actual infringement. Gomeco will not be liable for any infringement arising from: the combination of the Gomeco Platform or a Gomeco Service with other products or services; from the access or use of the Gomeco Platform or a Gomeco Service in practicing a process; or resulting from Your Content, Your Data or Excluded Data. Gomeco’s total liability under Our Agreement with respect to an actual or alleged infringing Gomeco Service, Gomeco App or the Gomeco Website will not under any circumstances exceed the aggregate Fees that you paid to Gomeco for use of that Gomeco Service, the Gomeco App or the Gomeco Website during the period of actual infringement by that Gomeco Service, the Gomeco App or the Gomeco Website.
This Section 14 constitutes Gomeco’s only obligation and liability, and your exclusive remedy, for actual or alleged infringement of the intellectual property rights of third parties by any of the Gomeco Platform or the Gomeco Services.
a. Term of Our Agreement. Our Agreement starts and is first effective on the date that Gomeco accepts the first of your Gomeco Order(s) and Our Agreement stays in effect until, and terminates, on the date that all Subscriptions have expired or terminated (whatever the reason for such expiration or termination, the “End Date”).
b. Term of Subscriptions. The term of each Subscription is month to month unless the Gomeco Order for a Subscription says the term for that Subscription is different (in which case the term for that Subscription will be the term described in the Gomeco Order for that Subscription). Unless the Gomeco Order for a Subscription expressly prohibits automatic renewal (in which case that Subscription will not automatically renew), each Subscription will automatically renew for additional periods equal to the expiring term for that Subscription or one year (whichever is shorter), unless either you or Gomeco gives the other written notice of non-renewal at least 30 days before the end of the relevant term for that Subscription.
c. Early Termination for Failure to Perform. Each of you and Gomeco has the right (by giving written notice of termination) to terminate the Subscriptions (or any one or more of them) before the end of the scheduled terms of the Subscriptions if the other party fails to perform any of its obligations under Our Agreement. In the case of a failure to perform an obligation that relates to the intellectual property or confidential information of the other party, no notice or opportunity to cure is required before the early termination notice may be effective. In all other cases, prior written notice and 30 days (but only 5 business days in the case of a payment default) opportunity to cure is required before the early termination notice may be effective. If all the Subscriptions are terminated by you or Gomeco under this Section, then the End Date occurs.
d. Suspension of Gomeco Services for Failure to Pay. If you don’t make a payment to Gomeco in full when due under Our Agreement Gomeco has the right to suspend your and your Users’ rights to access and use the Gomeco Platform or any or all of Your Subscription Services until all amounts due to Gomeco under Our Agreement have been paid in full by you.
e. What Happens on The End Date. On the End Date, you and your Users must immediately stop accessing and using the Gomeco Platform and the Gomeco Services. All rights granted to you and your Users to access and use the Gomeco Platform and the Gomeco Services will end automatically and immediately on the End Date.
f. Surviving Provisions. Section 3 and Sections 8 through 30 (but as to Section 11(a) only Gomeco’s continued right to be paid amounts due and owing to Gomeco prior to the End Date and overdue payment fees accruing prior to or after the End Date) will survive the End Date and continue to be effective after the End Date.
Gomeco’s rights and remedies are cumulative (and not exclusive) and may be exercised at the same time or at different times, and are in addition to any other remedies available at law, in equity or otherwise.
Each of you and Gomeco acknowledges that a violation of certain provisions of Our Agreement will result in substantial and irreparable damage to Gomeco for which Gomeco will not have an adequate remedy at law and for which money damages would not be a sufficient remedy, and you agree that, in addition to all other remedies, in the event of any breach or alleged or threatened breach by you or your Users of any of the provisions of Our Agreement, Gomeco will be entitled to equitable relief by any court of competent jurisdiction, including injunction and specific performance, in each case without being required to prove irreparable harm or damages, post a bond or otherwise provide security. The rights provided under this Section shall be in addition to, and not in lieu of, any other rights and remedies available to Gomeco at law or in equity.
Notices to Gomeco must be sent by you to: Gomeco Powered, Inc., 11 Farnsworth Street, Floor 2, Boston, MA 02210 or firstname.lastname@example.org or to another physical or email address that Gomeco tells you (in a notice) is its new notice address. Notices to you may be sent by Gomeco to the physical address that you provide in the most recent of the Gomeco Orders but we may also give electronic notices to you by general notice via the Gomeco Platform and Your Subscription Services and we may give electronic notices specific to you on your dashboard on the Gomeco Platform or by email to your email address on record with us. Notices are effective when actually delivered on a business day at the applicable physical address or when delivered on a business day by email to the applicable email address (or will be effect on the next business day when delivered by email to the applicable email address on a day other than a business day).
You grant us the right to list your name and company logo as a customer on the Gomeco Website and promotional material.
Our Agreement is binding upon both you and Gomeco and your and Gomeco’s successors and permitted assigns. Gomeco may assign any of its rights and obligations under Our Agreement to an affiliate or lender of Gomeco or to someone that acquires all or any substantial part of Gomeco’s business (by asset acquisition, merger or otherwise). Gomeco may also assign or sublicense the license granted to it under Section 8(b) as permitted in Section 8(b). You may assign your rights and obligations under Our Agreement only with Gomeco’s written consent, which Gomeco won’t deny unreasonably.
You agree that you have not received or been offered any bribe or illegal or improper kickback, payment, gift, or thing of value from any of Gomeco’s employees or agents in connection with Our Agreement and the Subscriptions, but this doesn’t prevent us or our Distributors from offering or providing reasonable entertainment or gifts in the ordinary course of business unless that is prohibited by applicable law. If you learn of any prohibited offer or payment, please let us know as soon as possible. Please notify Our Legal Department at email@example.com.
Neither party will be responsible for failure or delay of performance (other than a payment obligation) if that failure or delay is caused by events beyond that party’s reasonable control, including, but not limited to, fire; storm; flood; earthquake; explosion; war; act of terrorism; strike or labor disruption; internet, telecommunication or utility outages; rebellion; insurrection; quarantine; boycott; embargo; shortage or unavailability of supplies or qualified personnel; riot; governmental law, regulation or edict; or scheduled or emergency inspection, maintenance, repair, or replacement of equipment, software or structure. But the party whose performance is blocked should make reasonable efforts to resume performance as soon as reasonably practicable.
c. Amendment. Except for updates and modifications by Gomeco described in clauses (a) and (b) above, no part of Our Agreement can be changed, amended or modified except by written agreement of you and Gomeco expressly stating it is an amendment to Our Agreement.
d. Waiver. If Gomeco or you (or any of your Users) fails to perform an obligation under Our Agreement, that failure can only be waived (so that it doesn’t matter) if the other party waives it in writing and a waiver will only apply to that specific failure. In other words, if another obligation is breached or if the same obligation is breached again, another written waiver is needed. The fact that the other party doesn’t object to a failure or demand that it be fixed or enforce its rights resulting from that failure does not mean that there is a valid waiver or that that party can’t object, demand it be fixed or enforce its rights for that or any other failure.
We think all of the parts of Our Agreement are permitted under all the laws that apply to Our Agreement, but there are a lot of different laws that apply and sometimes laws change or the interpretation of laws change. If any section of Our Agreement is invalid, illegal or unenforceable under any of the laws that apply to Our Agreement, then you and Gomeco agree that section of Our Agreement will be reformed automatically (in other words fixed) so that it is valid, legal and enforceable under all the applicable laws consistent with what you and Gomeco originally intended that section to mean. In any case, the rest of Our Agreement stays in effect and isn’t affected by that invalid, illegal or unenforceable or reformed section.
Gomeco and you are independent contractors. Nothing in Our Agreement creates a partnership, franchise, joint venture, agency, fiduciary, agency, representative or employment relationship between Gomeco and you. There are no third-party beneficiaries under Our Agreement except for the App Provider as stated expressly in Section 6.
Our Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code, the Uniform Computer Information Transaction Act, or any substantially similar legislation shall not apply to Our Agreement. You and Gomeco agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these terms or any other part of Our Agreement.
You agree that you will not export or re-export the Gomeco Services and/or other information or materials provided by Gomeco to any country that requires any export license or government approval without first getting that license or approval. You agree to comply with all applicable United States export laws and regulations, and are responsible for these laws and regulations at your own expense. 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.
Our Agreement is governed by the internal laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflicts of laws of Massachusetts, and is binding upon the parties hereto in the United States and worldwide.
Any dispute, claim or controversy arising out of or relating to Our Agreement or the breach, termination, enforcement, interpretation or validity of any provision of Our Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Boston, Massachusetts before one arbitrator. Either Gomeco or you may commence the arbitration process called for in this Section by filing a written demand for arbitration with JAMS, with a copy to the other party. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, each as in effect at the time of filing of the demand for arbitration. Each party will cooperate with JAMS and with the other party in selecting an arbitrator from JAMS’s panel of neutrals, and in scheduling the arbitration proceedings. Each of you and Gomeco agrees that it will participate in the arbitration in good faith. The costs of the proceedings (including attorneys' fees and costs on a full indemnity basis or otherwise) shall be borne in the manner determined by the arbitrator. The provisions of this Section may be enforced by any court of competent jurisdiction. In the event of any procedural matter not covered by the relevant JAMS rules, the procedural law of the Commonwealth of Massachusetts shall govern. The parties acknowledge and agree that their obligations under this arbitration provision survive and will continue to bind them after the End Date. Judgment on the arbitration award may be entered in any court having jurisdiction. This Section won’t preclude either party from seeking equitable relief or provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the arbitration award, including the hearings and filings, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy or unless otherwise required by law or judicial decision.
Please direct questions regarding these Requirements to Gomeco by submitting a request to firstname.lastname@example.org or at our mailing address:
Dyart IT Consultants, Inc.
22023 Selkirk Ave.
Maple Ridge, BC V2X 2W9