Summary
The following terms, conditions and notices (the “Agreement”) govern your subscription to and use of Goose Networks, Inc.’s online service, offline components, and professional services (collectively, the “Service.”). This Agreement is a legally binding contract between you (the “Customer”) and Goose Networks, Inc. (”Goose”). Your use of the Service constitutes your agreement to all such terms, conditions, and notices, including any materials available on the Goose website incorporated by reference herein, including but not limited to Goose’s end user agreement and privacy policy, available at www.goosenetworks.com/legal/user-agreement and www.goosenetworks.com/legal/privacy-policy (the “Policies”), the terms of which are incorporated by reference. If you do not agree to this Agreement and/or the Policies, you may not use the Service. We reserve the right to change the terms, conditions, and notices under which the Service is offered, including but not limited to the charges associated with the use of the Service. Such changes will become effective five (5) business days after being posted on the Goose website. If you do not agree to the changes to the Agreement, Policies or the pricing for the Service, you must discontinue your use of the Service immediately.
Subscription
When you purchase a subscription to the Service through an order form (the “Order Form”), you and who you authorize to use the Service (the "Authorized Users") will be authorized to use the Service. During pre-release, features are subject to delivery by Goose on an as-available basis or, where possible, in the form of offline professional services. As available, the Goose website contains more complete description of these features. You agree that your purchases of the subscription is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Goose regarding future functionality or features.
Goose Managed Services
Goose offers consulting packages for its customers to provide training and commute data management expertise. When applicable, you will receive packages of Goose consulting hours as part of your subscription.
Independent Contractor
It is expressly agreed and understood that Goose, in entering into this Agreement and performing the Services and carrying out its obligations hereunder, is an independent contractor working for itself and is not, will not be deemed to be, and will not hold itself out as an agent, representative, or employee of Customer.
Customer Support
Customer Support for your subscription is included in your monthly subscription fee. Goose will provide support to customers via email at support@goosenetworks.com, or through your Service’s Admin Control Panel. We will respond to your requests within 2 business days. More details about support and additional support information is available through the customer’s Admin Control Panel.
Payment
Your subscription fee is billed on the first day Service. The subscription is automatically renewed according to your subscription terms and billed in advance on successive billing dates. The subscription can be canceled for any reason at the end of your current billing period. No refunds of pre-paid subscription fees will be made. Customer will not have access to the Service following cancellation. Goose will delete all images, content and information within 60 days of cancellation. Goose reserves the right to impose a reconnection fee in the event your Service is suspended and thereafter you request access to the Service. If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Payment for additional fees such as consulting packages and migration fees are due at the start of the engagement with no refunds available.
Privacy
Goose believes the privacy of consumers and Internet users is of the utmost importance. By using the Service, you agree to treat personally identifiable information with the highest degree of care an in compliance with all applicable laws and regulations. Goose’s treatment of any Customer information collected via the Services will be in accordance with Goose’s published Privacy Policy posted at www.goosenetworks.com/legal/privacy-policy, as amended and updated.
License Grant & Restrictions
Goose hereby grants to Customer and the Authorized Users a non-transferable, non-sublicensable, non-exclusive, limited license to access and use the Services in accordance with the Policies. This license is only valid for the Customer and the Authorized Users. Upon termination or expiration of this Agreement, Customer’s and its Authorized Users’ access to the Services will be terminated. All rights not expressly granted to you are reserved by Goose and its licensors. You are responsible for the use of the Services by each of your Users. You may not access the service if you are a direct competitor of Goose, without Goose’s prior written consent. In addition, the license does not include the right to, and the Customer will not directly or indirectly: (a) modify or create any derivative work based upon any of the Services; (b) grant any sublicense or other rights to the Services; (c) reverse engineer, disassemble, or decompile any of the Services or attempt to discover or recreate the source code of the Services; (d) remove, obscure, or alter any notice related to the Services; (e) sell or redistribute the Services; (f) make any passwords or login information of Customer or the Authorized Users available to anyone other than the Authorized Users; (g) use the Services in any way that would violate applicable laws; or (h) engage in or permit any use, possession, knowledge, viewing, examination, copying, disclosure, or other activity involving any Services that is not expressly authorized in writing by Goose. It is the responsibility of the Customer to protect all personally identifiable information residing in or input into the Services. Any failure by Customer or any Authorized User to comply with these terms shall automatically terminate the license granted hereunder.
Intellectual Property Ownership
The Services contain and involve valuable Intellectual Property Rights of Goose. Customer acknowledges that Goose and its licensors retain all Intellectual Property Rights, title, and interest in and to all of Goose’s confidential information or other proprietary information, products, services, and the ideas, concepts, techniques, inventions, processes, software, or works of authorship developed, embodied in or practiced in connection with the Services provided by Goose hereunder, including without limitation, all modifications, enhancement requests, feedback, derivative works, configurations, translations, updates, upgrades, and interfaces (all of the foregoing, the “Goose Works”). The Goose Works do not include any of Customer’s pre-existing hardware, software, or networks. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Content, any Goose technology or other intellectual property rights owned by Goose. “Intellectual Property Rights” shall mean any and all now known or hereafter existing rights associated with intangible property, including but not limited to registered and unregistered, United States and foreign copyrights, trade dress, trade names, corporate names, logos, inventions, patents, patent applications, software, know-how, and all other intellectual property and proprietary rights (of every kind and nature throughout the universe however designated). The Goose name, the Goose logo, and the product names associated with the Service are trademarks of Goose or third parties, and no right or license is granted to use them. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by you. You shall not give us any feedback that is subject to any license obligations or other restrictions on use.
Account Information & Data
Your confidential customer data is your property. Goose will not disclose your confidential data without your prior consent. Goose may use aggregate information which does not identify the Customer and/or the Authorized Users for internal analysis and external marketing purposes. We will comply at all times with the Goose Privacy Policy with respect to the use and disclosure of your data.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Goose represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform in accordance with normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct. You represent and warrant that your use of the Service shall comply with all applicable laws, rules, and regulations.
Indemnification
Goose shall defend you against any claim, demand, suit, or proceeding (“Claim”) made or brought against you by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by, you in connection with any such Claim; provided, that you (a) promptly give Goose written notice of the Claim; (b) give Goose sole control of the defense and settlement of the Claim; and (c) provide to Goose all reasonable assistance, at Goose’s expense. You shall defend Goose against any Claim made or brought against Goose by a third party alleging that your use of the Service infringes or misappropriates the intellectual property rights of a third party or violates applicable law, rules, or regulations, and shall indemnify Goose for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Goose in connection with any such Claim; provided, that Goose (a) promptly gives you written notice of the Claim; (b) gives you sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Goose of all liability); and (c) provide to you all reasonable assistance, at Goose’s expense. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described hereunder.
Internet Delays
Goose services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Goose is not responsible for any delays, delivery failures, or other damage resulting from such problems.
Force Majeure
Neither Party will be liable for or be considered to be in breach or default under this Agreement on account of any delay or failure to perform as required under this Agreement as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
Limitation of Liability
EXCEPT AS SET FORTH IN THE “REPRESENTATIONS AND WARRANTIES” SECTION ABOVE, WE AND/OR OUR SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS AVAILABLE FROM GOOSE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE AND/OR OUR SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE AND/OR OUR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF GOOSE’S SERVICES, WITH THE DELAY OR INABILITY TO USE THE GOOSE SERVICE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE GOOSE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF GOOSE’S SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE OR ANY OF OUR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT SHALL GOOSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE GOOSE SERVICE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.
Termination
Goose reserves the right, in our sole discretion, to terminate this Agreement and your access to the Service and any related services or any portion thereof at any time, immediately upon notice. The “Privacy,” “Intellectual Property Ownership,” “Indemnification,” “Limitation of Liability” and “Miscellaneous” sections shall survive termination of this Agreement for any reason.
Customer Reference
You agree that we can use your company name and logo in connection with marketing and promoting Goose.
Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Goose but may be assigned without your consent by Goose to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Goose directly or indirectly owning or controlling 50% or more of you shall entitle Goose to terminate this Agreement for cause immediately upon written notice.
Notice
All notices permitted or required under this Agreement shall be in writing and shall be delivered by confirmed facsimile transmission, in person, by e-mail, by certified or registered mail, return receipt requested, or by overnight delivery with receipt, to the respective facsimile numbers, e-mail addresses, or physical addresses of both Parties.
Miscellaneous
This Agreement shall be governed by laws of the State of Washington and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Goose as a result of this agreement or use of the Service. The failure of Goose to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Goose in writing. This Agreement, together with any applicable Order Form and the Policies, comprises the entire agreement between you and Goose and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Questions or Additional Information
If you have questions regarding this Agreement or wish to obtain additional information, please send email us at sales@goosenetworks.com.
Last Update: December 16, 2009.