Terms of Use
Please read this Terms of Use Agreement (the “Terms of Use”) carefully. These Terms of Use are entered into with Golioth, Inc. (“Golioth”) and govern your use of our website, (“Site” or “Website”) and your use and participation in any related services provided through the Site, including, without limitation, the Golioth Properties (as defined herein) (the “Services”). BY CLICKING ON THE “I ACCEPT”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“YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT GOLIOTH’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9 BELOW.
PLEASE BE AWARE THAT SECTION 17 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT The Agreement IS subject to change by Golioth in its sole discretion at any time. When changes are made, Golioth will make a new copy of the Terms of Use available at the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2 below). Golioth may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. SERVICES. Golioth is an Internet-of-Things (“IoT”) integration platform that provides turnkey IoT cloud services and developer tools for prototyping, building, connecting, deploying and managing your internet-enabled devices (each, a “Device”) at any scale and using the hardware and software you’re comfortable with (collectively, the “Golioth Platform”).
As a part of the Services, we may provide you with access to the Golioth Platform, which includes, without limitation, application interfaces (“API”), software development kits (“SDK”), development tools, documentation, tutorials, libraries and materials (“Golioth Materials,” and, together with the Golioth Platform, the “Golioth Properties”) in order to allow you to enable everything that your Devices need from the cloud. The Golioth SDK is currently built on top of the popular Real-Time Operating System (“RTOS”), Zephyr, with plans to support other Operating Systems in the future. Among the tools and resources offered as a part of the Services on the Website and through the Golioth SDK are Over the Air Updates (“OTA”), Logging, Data Forwarding and Device Management. Golioth may add, modify, or remove APIs, SDKs, widgets, and other tools, documentation, and materials from the Golioth Properties any time without notice to you. Your use of any Services or other aspects of the Golioth Properties is subject to the terms of this Agreement.
Certain of the Services are created with open source technologies and/or as open source projects. Pursuant to Section 3.9, your access to and use of those Services may be subject to separate license agreements and terms and conditions, which will be presented to you upon initial access and use.
We may, in our sole discretion, publish in the Golioth Platform acceptable software application (“Application”) development guidelines and developer privacy guidelines. You agree to develop any Applications in compliance with these guidelines, if any, including those that may be applicable to content, user experience and any other guidelines that Golioth makes available.
Unless otherwise set forth in an agreement between you and Golioth, Golioth will have no obligation to provide support to you in connection with your use of the Services. For any questions, technical support, or assistance troubleshooting concerning the Services, please contact us at hello@golioth.io. We will use commercially reasonably efforts to answer any questions and support inquiries within a commercially reasonable time.
2. REGISTRATION.
2.1 Account Registration. To obtain access to the Services, you may be required to register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form, such as your name, company name, and e-mail address. If you are an employee or other authorized user of an enterprise customer (“Enterprise Customer”), then the Enterprise Customer may have to send you an invitation to join. If you are the authorized account administrator designated by an Enterprise Customer, then you may be assigned different permissions than other end users. Regardless of whether you are registering an Account under an Enterprise Customer Account or under a personal Account, when registering with Golioth, you must: (a) provide true, accurate, current and complete information about yourself and (b) maintain and promptly update your registration or profile data to keep it true, accurate, current and complete. You are responsible for maintaining the confidentiality of your Account log-in information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Golioth of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Golioth cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2.2 Third-Party Platforms. We may allow you to access the Golioth Properties through a third-party platform (“Third-Party Platform”) as part of the functionality of the Services, by linking your Account with your accounts on those Third-Party Platforms (“Third-Party Accounts”), as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Golioth and/or grant Golioth access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Golioth to pay any fees or making Golioth subject to any usage limitations imposed by such third-party service providers. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Golioth Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND GOLIOTH DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.
3. OWNERSHIP.
3.1 Golioth Properties. Except with respect to Your Content, Your Data, any Applications you develop, User Content, and the limited rights granted under this Agreement, you agree that Golioth and its licensors own all rights, title and interest in Golioth Properties and all information, materials, and data thereon (including but not limited to, any computer code, objects, stories, dialogue, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, transcripts, documentation, and server software), the Improvements, Feedback and Golioth’s Confidential Information (each, as defined below) (collectively, the “Golioth IP”). You hereby assign to Golioth any right (including intellectual property rights), title or interest you may have or obtain in Improvements and acknowledge that Golioth will be entitled to use, implement and exploit any such Improvements in any manner without restriction and without any obligation of confidentiality, attribution, accounting, or compensation or other duty to account. You agree that you will take any action that Golioth may reasonably request to ensure Golioth’s ownership of, and exercise the rights in, Improvements or Feedback, including, without limitation, the execution, delivery and filing of documents and the provision of information, documents and testimony. If you create any Improvements to Golioth Materials, you will promptly provide Golioth all of the materials (including any source code to such Improvements). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Golioth Properties. Furthermore, except as expressly set forth in this Agreement, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to the Golioth IP.
3.2 License to the Services. Subject to this Agreement, and without limiting the license granted in Section 3.3 below, Golioth grants you a non-transferable, non-exclusive, revocable, limited license to use, access and download (if and as applicable) the Services for your own personal or internal business purposes. Golioth reserves the right to change the terms of your license and/or subscription, by imposing caps on the number of Registered Users under an Account and/or the amount of data uploaded or stored by Registered Users of an Account, from time to time. When such changes are made, they shall become effective as of the beginning of your next monthly billing period following the date we provide you with written notice of such change.
3.3 License to the Golioth Materials. Subject to this Agreement, Golioth grants you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license, under any intellectual property rights Golioth may have, to:
(a) use the Golioth Materials solely for (i) your internal development and testing of any Device and/or Application (the “Purpose”);
(b) make adaptations, alterations, derivative works, enhancements, modifications, improvements, updates, upgrades or translations of the Golioth Materials (“Improvements”), but solely for internal use in connection with the Purpose and for no other reason; and
(c) make a reasonable number of copies of any documentation made available by Golioth as part of the Golioth Materials solely to facilitate the exercise of the rights granted to you under this Agreement.
This license is only for use and the exercise of the rights in this Agreement in the United States of America and any additional territories agreed to by Golioth in writing in advance in each instance during the term of this Agreement.
3.4 Trademarks.
and all related graphics, logos, service marks and trade names used on or in connection with any Golioth Properties or in connection with the Services are the trademarks of Golioth and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Golioth Properties are the property of their respective owners.
3.5 Feedback and Improvements. You agree that submission of any ideas, suggestions, documents, and/or proposals to Golioth through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Golioth has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. To the extent that the Feedback and/or Improvements cannot be assigned to Golioth in accordance with Section 3.1 above, you hereby grant to Golioth a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback and Improvements, and to sublicense the foregoing rights, in connection with the operation and maintenance of Golioth’s business.
3.6 Your Content. Golioth does not claim ownership of Your Data or Your Content (each, as defined in Section 4 below) or your Applications (excluding any Golioth IP incorporated within or necessary to use such Application). However, when you as a user post or publish Your Content on or in Golioth Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
3.7 License to Your Content. Subject to any applicable account settings that you select, you grant Golioth (a) a fully paid, royalty-free, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) and to distribute, publicly perform, and publicly display your Application, for the purposes of operating and providing Golioth Properties to you and to our other users; and (b) a fully paid, royalty-free, worldwide, non-exclusive license to use Your Data solely for purposes of providing and improving the Golioth Properties. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content (or Your Data that you choose to publish) that you submit to any “public” area of Golioth Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Golioth, are responsible for all of Your Content and Your Data that you Make Available on or in Golioth Properties.
3.8 Analytics and Improvements. In addition to the rights granted in Section 3.7, you hereby grant Golioth the right to de-identify and analyze any data or information you provide us through the use of the Services, including uploaded activities, run artifacts, process metrics, and configurations, and agree that Golioth exclusively owns such de-identified data and any improvements or new services arising therefrom. Additionally, you agree that we shall have the right to collect usage data and metrics with respect to your use of the Services and may use such data to provide and/or improve the Services.
3.9 Open Source Software. Certain items of software are available to you with the Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.2, 3.3 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, we make such Open Source Software, and our modifications to that Open Source Software, available by written request at the notice address specified below.
3.10 Nothing in this Agreement prevents Golioth or other developers who may have relationships with Golioth from developing or having developed products, content, software, concepts, systems or techniques that are similar to or compete with products, content, software, concepts, systems or techniques that you may develop pursuant to this Agreement, including in connection with your use of Golioth Properties. You acknowledge that multiple products may be in simultaneous development for Golioth’s platform at any time.
4. RESPONSIBILITY FOR CONTENT
4.1 Types of Content. You acknowledge that all files, materials, text, audio, video, images or other content, including tutorials (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Golioth, are entirely responsible for all Content that you upload, post, e-mail, transmit, store or otherwise make available ( “Make Available”) through Golioth Properties (“Your Content” ), and that you and other users of Golioth Properties, and not Golioth, are similarly responsible for all Content they Make Available through Golioth Properties (“User Content”). You are also solely responsible for any and all data or information that you store in the Services or that is collected by you or an Application you create or a Device you build or deploy (“Your Data”). For purposes of clarity, Your Content will include uploaded code libraries, activities and tools in the Services; uploaded tutorials, learning materials, and other content; and comments, questions and reviews posted to public forums on the Site.
4.2 Y our Warranty; Responsibility for Security. You represent and warrant that Your Content and Your Data will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Golioth’s system or data; and (e) otherwise violate the rights of a third party. Golioth is not obligated to back up any of Your Content or Your Data; you are solely responsible for creating backup copies of any of Your Content and Your Data at your sole cost and expense. You agree that any use of the Services contrary to or in violation of the representations and warranties in this Section 4.2 and/or applicable laws, rules, and regulations, constitutes unauthorized and improper use of the Services. You will be responsible for all changes to and/or deletions of Your Content and/or Your Data and the security of all passwords and other access protocols required in order the access the Services. You will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of Your Content and Your Data, including in the event of a security breach resulting from your own actions.
4.3 No Obligation to Pre-Screen Content. You acknowledge that Golioth has no obligation to pre-screen Content (including, but not limited to, User Content) or Your Data, although Golioth reserves the right in its sole discretion to pre-screen, refuse or remove any Content or Your Data. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat communications, or Your Data. In the event that Golioth pre-screens, refuses or removes any Content or Your Data, you acknowledge that Golioth will do so for Golioth’s benefit and the benefit of the community, not yours. Without limiting the foregoing, Golioth shall have the right to remove any Content or Your Data that violates the Agreement or is otherwise objectionable.
4.4 Storage. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Golioth retains the right to create reasonable limits on Golioth’s use and storage of the Content, including Your Content and Your Data, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Golioth in its sole discretion.
5. USER CONDUCT.
5.1 As a condition of use, you agree not to use the Services, or develop or build any Devices or Applications, for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action, (b) make available any content on or through the Site, or (c) build any Devices or Applications that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane or otherwise violates another party’s rights; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Golioth’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Golioth; (vi) interferes with or attempt to interfere with the proper functioning of Golioth Properties or uses Golioth Properties in any way not expressly permitted by the Agreement, including by overburdening the servers on which the Golioth Properties are made available; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Golioth, Golioth Properties or any users of Golioth Properties, including but not limited to violating or attempting to violate or circumvent any security features of Golioth Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Golioth Properties, introducing viruses, worms, or similar harmful code into Golioth Properties, or interfering or attempting to interfere with use of Golioth Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Golioth Properties.
5.2 You will not use the Services for any purposes beyond the scope of the licenses granted in this Agreement. Without limiting the generality of the foregoing, you will not (i) market or distribute the Services; (ii) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, your rights under the licenses granted herein; (iii) use the Services in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party; (v) modify or create any derivative works of the Services (or any component thereof), except for internal business purposes; (vi) combine or integrate the Services with hardware, software or technology not provided to you or authorized by Golioth hereunder; or (vii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Services are compiled or interpreted, and you hereby acknowledge that nothing in this Agreement shall be construed to grant you any right to obtain or use such source code.
5.3 You are solely responsible and liable for your Devices, and for supporting the Devices. On each Device in which you use the Services, you shall prominently display and comply with a privacy policy on such Device that includes a full, accurate and clear disclosure regarding Golioth’s collection, use and distribution of personal information collected via the Services in accordance with our Privacy Policy. Golioth will have the right, in its sole discretion, to refuse to permit your use of the Services with a particular Device. Unless Golioth states otherwise, such rejection will not terminate this Agreement with respect to any other Device. Golioth will have no liability to you for such refusal.
5.4 You agree to not: (a) disclose the content or existence of any Application to any third party without Golioth’s prior written consent; (b) share the Application with any third party or otherwise sell or make the Application available to third parties without Golioth’s permission; or (c) use the Golioth Properties to create any Application, the operation of which is reasonably likely or intended to cause personal injury, property damage or death.
5.5 At Golioth, our goal is to remove restrictive barriers to adoption and scale the Services to benefit as many users as possible, while keeping in place certain policies designed at penalizing bad actors who intend to cause undue stress to our Services’ reliability and/or to bring excessive cost through the intentional overuse of our Services. As a result, we have established a Responsible Use Policy, which is incorporated into this Agreement. By using and/or accessing the Services, you agree to comply with the Responsible Use Policy. Any failure to do so may result in suspension and/or termination of your Account.
6. Excluded Uses. The Golioth Properties are not intended, designed, manufactured, authorized or warranted to be suitable for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation systems or air traffic control, communications systems, life support applications, devices, systems or machines, military or space equipment requiring radiation hardened components, enhanced 911 or E911 emergency calling system, commission of intentional physical harm to persons or animals (whether or not fatal), non-consensual surveillance, facilitation of incarceration or criminal investigation, transport of weapons of any type, facilitation or sales or distribution of DEA Schedule 1 substances or substances known to cause harm without known benefits, weapons systems, in which the failure of such products could lead directly to death, personal injury, or severe physical or environmental damage, or uses that are criminal or otherwise unlawful (collectively, “Excluded Uses”). You agree to not use the Golioth Properties to develop any Devices or Applications that could be used for any Excluded Uses.
7. INTERACTIONS WITH OTHER USERS. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Golioth reserves the right, but has no obligation, to intercede in such disputes. You agree that Golioth will not be responsible for any liability incurred as the result of such interactions.
8. FEES AND SUBSCRIPTION TERMS .
8.1 Payment. We may charge for certain tools or features and functionality of the Services. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Golioth with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) ( “Payment Provider”), as a condition to signing up for Services for which we charge. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Golioth with your credit card number and associated payment information, you agree that Golioth is authorized to immediately invoice your Account for all fees and charges due and payable to Golioth hereunder and that no additional notice or consent is required. You agree to immediately notify Golioth of any change in your billing address or the credit card used for payment hereunder. Golioth reserves the right at any time to change its prices and billing methods, either immediately upon posting through the Services.
8.2 Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you subscribe to paid services and select your pricing package (each, a “Service Commencement Date”). Your subscription may be subject to certain usage or data capacity restrictions. In the event you have reached such restrictions, you will be required to purchase the next subscription tier and will be responsible for the difference in cost between such tiers. Except as set forth in the Agreement, all Service Subscription Fees are non-refundable. No contract will exist between you and Golioth for the Services until Golioth accepts your order by a confirmatory e-mail or other appropriate means of communication.
8.3 Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Golioth’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Golioth that your subscription will be automatically renewed, you will have thirty days from the date of the Golioth notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Golioth at billing@golioth.io or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Golioth to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Golioth does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Golioth may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
8.4 Refunds. Except as expressly permitted by Golioth in writing or as explicitly stated as part of the sign-up process for a Service or in a specific arrangement, Golioth will not provide refunds for the Services. If Golioth terminates a Service, we will refund the associated prepaid and unused fees as appropriate, in our sole discretion.
8.5 Taxes. The payments required under Section 8.1 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Golioth determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Golioth shall collect such Sales Tax in addition to the payments required under Section 8.1 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Golioth, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Golioth for any liability or expense Golioth may incur in connection with such Sales Taxes. Upon Golioth’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
8.6 Withholding Taxes. You agree to make all payments of fees to Golioth free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Golioth will be your sole responsibility, and you will provide Golioth with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
8.7 Disputes. Unless otherwise provided by the applicable payment processor or payment platform used in connection with your payment for Services, you must notify us in writing within seven (7) days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: billing@golioth.io.
8.8 Third Party Provider. The Company uses Stripe, Inc. and its affiliates as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Third Party Service Provider”). By making a purchase through the Services, you agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/us/terms) and hereby consent and authorize Golioth and Stripe to share any information and payment instructions you provide with one or more Third Party Service Provider(s) to the minimum extent required to complete your transactions.
8.9 Discounts, Promo Codes and Premium Offers. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for a discount on the Services, credit in your Account, or any other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). PROMO CODES MAY ONLY BE USED ONCE PER PERSON, AND ONLY ONE PROMO CODE MAY BE USED PER ORDER. Only Promo Codes sent to you through official Golioth communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted and authorized in writing by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use. From time to time, we may offer special promotions associated with some of our Services. All promotional offers may be discontinued at any time, without prior notice, at our discretion and are only available while supplies last or for the duration noted.
8.10 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire, and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Golioth to have the charges reversed.
9. THIRD-PARTY SERVICES. In addition to Open Source Software, Golioth Properties may contain links or other access to third-party websites, applications, tools, or services (collectively, “Third-Party Services”). When you click on a link to a Third-Party Service, we may not warn you that you have left Golioth Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Golioth. Golioth is not responsible for any Third-Party Services. Golioth provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services. You access and use all Third-Party Services at your own risk. When you leave our Services, this Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
10. CONFIDENTIALITY.
10.1 You acknowledge that you may receive information relating to Golioth, its business, products, and services, and related intellectual property as well as the Golioth IP (collectively, “Confidential Information”) in connection with your use of the Services. You agree to keep the Confidential Information strictly confidential, not to publish or disclose any Confidential Information to a third party, and only use such information to the extent necessary to exercise your rights under this Agreement. You agree that you will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party. You will use at least a reasonable standard of care in maintaining the confidentiality of the Confidential Information. You agree to restrict access to the Confidential Information to such of your personnel, agents and consultants, if any, who have a have a need to know and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement. You agree that you will not acquire any rights under any patent, copyright, trade secret, or other right, or assert any lien against Golioth’s Confidential Information. Your obligations with respect to Confidential Information with continue even after you have stopped using the Services. You agree to destroy or return any Confidential Information at Golioth’s request or upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, you will immediately notify Golioth. Notwithstanding the foregoing, you may disclose Golioth’s Confidential Information to the extent the disclosure is required by law or by order of a court or governmental agency. However, in such event, you will assist Golioth in obtaining a protective order or similar protection to maintain the confidentiality of the Confidential Information to the extent possible. You acknowledge that any breach of this section will cause immediate and irreparable injury to Golioth, and in the event of such breach, Golioth will have the right to seek and obtain injunctive relief, and to pursue any other remedies available at law or in equity, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
10.2 You agree to not issue press releases relating to Golioth or this Agreement, or use any name, trademark, service mark, logo or commercial symbol of Golioth or its affiliates for any purposes, including in any brochures, advertisements, client lists or other promotional materials without prior written authorization by Golioth in each instance.
11. INDEMNIFICATION. You agree to indemnify and hold Golioth, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Golioth Party” and collectively, the “Golioth Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) relating to or arising out of any and all of the following: (a) Your Content and/or Your Data; (b) your Devices and/or Applications; (c) your access to and use of, or inability to use, any Golioth Property; (d) your violation of the Agreement; (e) your violation of any rights of another party, including any Registered Users; (f) any property damage, personal injury, or death related to the operation of any Device and/or Application or otherwise caused by your negligence or willful misconduct; (g) any actual or alleged (direct or indirect) infringement or misappropriation of intellectual property rights by any Application, Feedback and/or Improvements; or (h) your violation of any applicable laws, rules or regulations, including any violation of applicable laws, rules, or regulations resulting from your Devices, Applications, Your Content and/or Your Data. Golioth reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Golioth in asserting any available defenses. This provision does not require you to indemnify any of the Golioth Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Golioth Properties. Your duty to defend is independent of your duty to indemnify. Your obligations under this section are independent of all of your other obligations under this Agreement. You will use counsel reasonably satisfactory to Golioth to defend each Claim, and Golioth will cooperate (at your expense) with your defense of the Claim. You will not consent to the entry of any judgment or enter into any settlement without Golioth’s prior written consent, which may not be unreasonably withheld. Golioth may participate in the defense, and, if it reasonably determines that a Claim might adversely affect it, Golioth may take control of the defense, each at its own expense (and without limiting your indemnification obligations).
12. DISCLAIMER OF WARRANTIES AND CONDITIONS.
12.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF GOLIOTH PROPERTIES IS AT YOUR SOLE RISK, AND GOLIOTH PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. GOLIOTH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) GOLIOTH PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) GOLIOTH PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF GOLIOTH PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF GOLIOTH PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH GOLIOTH PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS GOLIOTH PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. GOLIOTH MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM GOLIOTH OR THROUGH GOLIOTH PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Golioth may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Golioth’s sole discretion. The provisions of this section apply with full force to such features or tools.
12.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT GOLIOTH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GOLIOTH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
13. LIMITATION OF LIABILITY.
13.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL GOLIOTH PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT GOLIOTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF GOLIOTH PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE GOLIOTH PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH GOLIOTH PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON GOLIOTH PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO GOLIOTH PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GOLIOTH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A GOLIOTH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A GOLIOTH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL GOLIOTH PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Golioth by you during the TWELVE-month period prior to the act, omission or occurrence giving rise to such liability and (B) ONE-HUNDRED U.S. DOLLARS ($100.00). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A GOLIOTH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A GOLIOTH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A GOLIOTH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13.3 User Content. EXCEPT FOR GOLIOTH’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE GOLIOTH’S PRIVACY POLICY, GOLIOTH ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
13.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GOLIOTH AND YOU.
14. REMEDIES.
14.1 Violations. If Golioth becomes aware of any possible violations by you of the Agreement, Golioth reserves the right to investigate such violations. If, as a result of the investigation, Golioth believes that criminal activity has occurred, Golioth reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Golioth is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Golioth Properties, including Your Content, in Golioth’s possession in connection with your use of Golioth Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Golioth, its Registered Users or the public, and all enforcement or other government officials, as Golioth in its sole discretion believes to be necessary or appropriate.
14.2 Breach. In the event that Golioth determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Golioth Properties, Golioth reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Golioth) that you have violated the Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to Golioth Properties;
(c) Discontinue your registration(s) with any of Golioth Properties, including any Services or any Golioth community;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Golioth deems to be appropriate.
15. TERM AND TERMINATION.
15.1 Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Golioth Properties, unless terminated earlier in accordance with the Agreement.
15.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Golioth Properties or (b) the date you accepted the Agreement and will remain in full force and effect while you use any Golioth Properties, unless earlier terminated in accordance with the Agreement.
15.3 Termination of Services by Golioth. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service. The Service Subscription Fee for any Service shall be non-refundable. Golioth has the right to, immediately and without notice, suspend or terminate any Services provided to you, for any reason, including for non-payment or late payment of any Service Subscription Fee. You agree that all terminations for cause shall be made in Golioth’s sole discretion and that Golioth shall not be liable to you or any third party for any termination of your Account.
15.4 Termination of Services by You. If you want to terminate the Services provided by Golioth, you may do so by (a) notifying Golioth at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Golioth’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 8.3.
15.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately and you must immediately discontinue accessing and using any feature of the Golioth Properties, and delete, or return upon Golioth’s request, any copies of Confidential Information and/or Golioth Materials in your possession or control. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Golioth will not have any liability whatsoever to you for any suspension or termination, including for deletion of your data. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6 No Subsequent Registration. If your registration(s) with or ability to access the Site or the Services is discontinued by Golioth due to your violation of any portion of the Agreement or for otherwise inappropriate conduct, then you agree that you shall not attempt to re-register with or access the Site through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to the Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Golioth reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. INTERNATIONAL USERS. The Site and Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Golioth intends to announce such Services or Content in your country. Golioth Properties are controlled and offered by Golioth from its facilities in the United States of America. Golioth makes no representations that the Site and Services are appropriate or available for use in other locations. Those who access or use Site or Services from other countries do so at their own volition and are responsible for compliance with local law.
17. DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Golioth and limits the manner in which you can seek relief from us.
17.1 Applicability of Arbitration Agreement . You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Golioth, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Golioth may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
17.2 Arbitration Rules and Forum . The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at LegalInc Corporate Services, 651 N. Broad St., Suite 206, Middleton, Delaware 19709. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Golioth will pay them for you. In addition, Golioth will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Golioth. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4 Waiver of Jury Trial. YOU AND GOLIOTH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Golioth are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE ENTERPRISE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER ENTERPRISE CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of Delaware. All other claims shall be arbitrated.
17.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to hello@golioth.io, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Golioth username (if any), the email address you used to set up your Golioth account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
17.7 Severability . Except as provided in Section 17.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.8 Survival of Agreement . This Arbitration Agreement will survive the termination of your relationship with Golioth.
17.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Golioth makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Golioth at the following address: Golioth, Inc., 548 Market Street, PMB 73345, San Francisco, CA 94104.
18. GENERAL PROVISIONS.
18.1 Electronic Communications. The communications between you and Golioth may take place via electronic means, whether you visit Golioth Properties or send Golioth e-mails, or whether Golioth posts notices on Golioth Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Golioth in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Golioth provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
18.2 Release. You hereby release Golioth Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Golioth Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Golioth Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Golioth Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
18.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Golioth’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.4 Force Majeure. Golioth shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Golioth Properties, please contact us at: Golioth, Inc., 548 Market Street, PMB 73345, San Francisco, CA 94104 or hello@golioth.io. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.6 Governing Law. The AGREEMENT and any action related thereto will be governed and interpreted by and under the laws oF the State of DELAWARE, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and GOLIOTH agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in new castle county, delaware..
18.7 Notice. Where Golioth requires that you provide an e-mail address, you are responsible for providing Golioth with your most current e-mail address. In the event that the last e-mail address you provided to Golioth is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Golioth’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Golioth at the following address: Golioth, Inc., 548 Market Street, PMB 73345, San Francisco, CA 94104. Such notice shall be deemed given when received by Golioth by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.8 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.9 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.10 Export Control. You may not use, export, import, or transfer Golioth Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Golioth Properties, and any other applicable laws. In particular, but without limitation, Golioth Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Golioth Properties, you represent and warrant that (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Golioth Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Golioth are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Golioth products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.12 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.