Please read the following terms of service (“Agreement” or “Terms of Service”) carefully before using the services offered by Goally, Inc. (“Goally”). This agreement sets forth the legally binding terms and conditions for your use of the Goally service including, without limitation, any other software, services, features, content, websites (or other linked pages) or applications (including without limitation mobile and web applications) offered, from time to time, by Goally in connection therewith (collectively “Service(s)”). By using the Service in any manner, you agree to be bound by this agreement. If you do not want to be bound by this agreement, do not use any product or service provided by Goally. By agreeing to this Terms of Service you are also representing that you are of the appropriate legal age to enter into such an agreement. The term “you” refers to the individual or legal entity, as applicable, identified as the user when you registered for the Service.
The Terms of Service include a class action waiver and a waiver of jury trials and require binding arbitration on an individual basis to resolve disputes.
The Terms of Service limit the remedies that may be available to you in the event of a dispute.
1. The Goally Service
1.1.General. The Service is designed to assist children with ADHD and Autism and their parents and guardians in developing routines and guided activities to promote and improve independence. You Service is intended to be used in connection with the Goally Ball (the “Product”). You may use the Service in connection with the Product only after you (a) have purchased the Product or received it from a healthcare provider, insurance company, research organization, or other entity (“Sponsor”), and (b) have downloaded the Goally mobile or computer application available through the Apple iTunes, Google Play Store or other source (the “Application”). You must also read and accept the Goally Terms of Sale for the Product (“Product Terms of Sale”) before using the Product or accessing the Service in connection with your use of the Product. Whether you purchase the Product from Goally or receive it from a third-party Sponsor, the terms of this Agreement will apply to the use of the Service.
third-party Sponsor, the terms of this Agreement will apply to the use of the Service.
1.2. Registering Your Account. In order to access certain features of the Service you may be required to register for an account (“Account”).
1.3. Registration Data. In registering for the Service, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using the Service under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Goally immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Goally has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Goally has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. The Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Goally, or if you have been previously banned from use of any of the Services.
2. Use of Your Information
2.1. Provision of the Service. If you create, transmit, submit, display or otherwise make available information (including, without limitation, information you have made available automatically through connection of the Product to the Application) while using the Service, you may provide only information that you own or have the right to use. You hereby grant to Goally a non-exclusive, fully-paid, royalty-free license to fully use and exploit all such information in connection with providing you the Service.
2.2. Research Studies. If you agree to participate in a research study or other clinical trial (a “Study”) involving the Service or the Product, Goally may share your information with the Sponsors associated with such Study. Additional terms and conditions regarding your participation in any Study will be presented to you at the time of your enrollment therein.
3. Not Medical Advice
Goally does not offer medical advice or diagnoses, or engage in the practice of medicine. Our Service is not intended to be a substitute for professional medical advice, diagnosis, or treatment and is offered for informational purposes only. Any advice you receive from a Sponsor, even if such Sponsor is a licensed professional, is intended solely to aid in your use of the Service and should not be construed as medical advice.
4.1. Subscriptions. When you purchase a subscription to the Service, you are purchasing the right to receive regular and recurring access to the Service (a “Subscription”). By purchasing any Subscription, you acknowledge that your Subscription has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation of the automatic renewal of your Subscription and you acknowledge that your Subscription will be automatically extended for successive periods.
4.2. Cancellation. To cancel the automatic renewal of your Subscription, you must do one of the following prior to your renewal date to avoid being charged for the next renewal period: update your Subscription options in your Account through the Service, or by sending an email firstname.lastname@example.org. If you cancel the automatic renewal of your Subscription, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current Subscription Period.
4.3. Automatic Renewal. All pre-paid Subscriptions will renew at the end of your initial term for the same period of time as such initial term (each a “Subscription Period”). For example, if you bought a three-month Subscription on November 7th, your Subscription would renew for another three months on February 7th. If you have a renewal date on the 30th or 31st of the month, your renewal date will be moved to accommodate months that do not have those dates. For example, if your Subscription was started on January 31st and had a one-month Subscription Period, it will renew on February 28th (or 29th if it is a Leap Year), and thereafter your renewal date will be the 28th of each subsequent month. If you cancel the automatic renewal of your Subscription, you may use your Subscription until the end of your then-current Subscription Period. If Goally does not receive payment for a renewal prior to the date of renewal, Goally may, in its discretion, do one or more of the following: (i) demand full payment, (ii) charge any form of payment you have obtained to replace your provided form of payment (e.g., if you have obtained a replacement credit card number), and you hereby authorize Goally to do so, and (iii) terminate or suspend your Subscription.
5.Fees and Payment
5.1. Fees. The fees for Goally Products, Services, and Subscriptions are displayed on the Goally website. All such fees do not include taxes, shipping or handling charges (to the extent applicable). Any applicable taxes, shipping or handling charges will be communicated to you before you place an order. Products in your shopping cart reflect the current price displayed on the Product’s details page.
5.2. Payment. By submitting an order for any Products, Subscriptions, or Services, you agree to pay in advance the price therefore, plus any applicable taxes, shipping and handling and/or other charges. Payment may be made by credit card or any other method of payment Goally may make available to you. In order to make a payment, you must provide us and our third-party payment processor with valid credit card and/or other billing information and authorize us (or any third-party payment service provider engaged by us) to charge your method of payment for all orders placed and accepted via the Services. Goally is not responsible for any bank fees, overdraft fees, or other fees or obligations in connection with your payments hereunder.
5.3. Order Confirmation. Goally will provide an email or other form of confirmation after receipt of your order. Goally reserves the right to refuse or limit any order you place with us. Goally may also, in Goally’s sole discretion, limit or cancel quantities of Products purchased per person, household or order. These restrictions may include orders placed by or under the same Account, method of payment, email address, and/or using the same billing and/or shipping address. Goally also reserves the right to limit or prohibit orders that, in Goally’s sole judgment, appear to be placed by dealers, resellers or distributors. In the event Goally makes a change to or cancels an order, Goally will attempt to notify you by contacting the email address provided at the time the order was made. If Goally cancels all or any part of your order after your method of payment has been charged, Goally will refund the billed amount.
5.4. Shipment and Delivery. Except in the case of pre-ordered Products and Services to be delivered at a later date as indicated on the Goally website, you may choose the method of shipment and timing of delivery for Products you order if more than one method is available. You will be charged shipping and handling charges accordingly based on your choice. Goally will not be held liable for deliveries that are delayed due to events that are beyond Goally’s control. However, Goally will work with you to ensure a smooth delivery.
5.5. All Product Sales Final Unless Otherwise Indicated[A2] . All sales of Products are final, and unless otherwise indicated on the Goally website, no returns or exchanges of Products are accepted by Goally. All payments for Products are non-refundable.
6. Third Party Services and Sharing of Personal Data
6.1. Third-Party Sites. Goally may provide you with links to, or contact information for, third party sites or services. Goally is not responsible for, and does not endorse, any third-party content, sites, or services including, without limitation, any health care providers, products, tests, procedures, services, opinions, or web sites accessed or mentioned on the Service. Use of any third party sites and/or services is solely at your own risk.
6.2. Sponsors. Goally also may enter into business arrangements with third-parties, including Sponsors, which will allow you to share your personal data with them. Whether to share your personal data with these third-parties will be up to you. By properly following instructions provided to you by Goally and these third-parties, you will be able to decide whether you want to share any personal data with these third-parties. Sharing of your personal data with a third-party is solely at your own risk.
7.1. Services. You agree that Goally and its licensors own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
7.2. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Goally.
7.3. Feedback and Reviews. You agree that submission of any ideas, suggestions, documents, and/or proposals to Goally (“Feedback”) is at your own risk and that Goally 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. You hereby grant to Goally 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 to sublicense the foregoing rights. Additionally, if you provide reviews or quotes about any of our Products or Services to us (“Reviews”), you hereby grant Goally 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 and all Reviews and to include your first name in connection with our use of the any such Review.
8. User Content
9. General Prohibitions
You agree that you will not contribute any User Content, or otherwise use the Services in a manner, that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Company reserves the right to remove any User Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such User Content or if Company is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Company, remain solely responsible for all User Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Services and as otherwise provided herein. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Website, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl”, “scrape”, or “spider” any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services.
Goally may terminate your access to all or any part of the Service at any time if you fail to comply with these Terms of Service. This may result in the forfeiture and destruction of all information associated with your membership and will immediately terminate your ability to use the Service in any way. If you wish to terminate your Account, you may do so by ceasing use of the Product and deleting the Application. Sections 5, 7, and 10-16 will survive termination or expiration of this Agreement.
11. Warranty Disclaimer
THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. GOALLY AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, SPONSORS AND PARTNERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify, and hold harmless Goally, its affiliates and each of its, and its affiliates employees, contractors, directors, suppliers and representatives from all liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to (i) your use or misuse of, or access to, the Service, or (ii) your violation of the Terms of Service or any applicable law, contract, policy, regulation or other obligation. Goally reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Goally in connection therewith.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL GOALLY (NOR ITS DIRECTORS, EMPLOYEES, AGENTS, SPONSORS, PARTNERS, SUPPLIERS, CONTENT PROVIDERS, LICENSORS OR RESELLERS) BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, LOSS OF GOODWILL OR OPPORTUNITY, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR SUBSTITUTE GOODS OR SERVICES, (II) FOR YOUR RELIANCE ON THE SERVICE (III) FOR ANY DIRECT DAMAGES IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID BY YOU FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE CLAIM OR (IV) FOR ANY MATTER BEYOND ITS OR THEIR REASONABLE CONTROL, EVEN IF GOALLY HAS BE ADVISED OF THE POSSIBILITY OF ANY OF THE AFOREMENTIONED DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
14. The Application
The Application. Both you and Goally acknowledge that this Agreement is concluded between you and Goally only; and not with Apple or Google or any other manufacturer’s products that you might use to access Goally, and that Apple, Google, or any other manufacturer’s products that you might use to access Goally is not responsible for the Application or the Content. The Application is licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis. The Application is solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Service. You will only use the Application in connection with an Apple or Android device that you own or control. You acknowledge and agree that Apple/Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure. Upon such notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application. You acknowledge and agree that Goally, and not Apple or Google, is responsible for addressing any claims you or any third party may have in relation to the Application.
15. Arbitration Agreement
15.1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms, use of any product or service provided by Goally, or related to the processing of personal data, that cannot be resolved informally or on an individual basis in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Section 18 (this “Arbitration Agreement”). Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and Goally, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
15.2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Goally should be sent to: Goally, 1002 Walnut St #200, Boulder, CO 80302. After the Notice is received, you and Goally may attempt to resolve the claim or dispute informally. If you and Goally do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
15.3. Arbitration Rules. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The JAMS Streamlined Arbitration Rules (the “JAMS Rules”) governing the arbitration are available online at http://www.jamsadr.com/. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
15.4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance-based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
15.5. Time Limits. If you or Goally pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
15.6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Goally, and the dispute 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 (including any claim regarding the enforceability of this Arbitration Agreement or any unconscionability in connection with these Terms). 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 JAMS Rules, and the Terms. 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 Goally.
15.7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Goally in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
15.8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
15.9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
15.10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable with regards to any particular subject matter by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect with regard to such specific subject matter and shall be severed and the remainder of the Agreement shall continue in full force and effect.
15.11. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
15.12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
15.13. Small Claims Court. Notwithstanding the foregoing, either you or Goally may bring an individual action in small claims court.
15.14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
15.15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
15.16. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Baltimore County, Maryland, for such purpose.
16. General Provisions
16.1. Release. You hereby release Goally 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 the Services or any interaction between you and any other user of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
16.2. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Goally’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3. Force Majeure. The Company 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.
16.4. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
16.5. Notice. Where Goally requires that you provide an e-mail address, you are responsible for providing Goally with your most current e-mail address. In the event that the last e-mail address you provided to Goally is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Goally’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Goally at the following address: Goally, 1002 Walnut St #200, Boulder, CO 80302. Such notice shall be deemed given when received by Goally by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.6. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.7. Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
16.8. Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services 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 the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services 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 Company 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 Goally products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.9. Entire Agreement. The Terms are 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.
16.10. Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms and such terms will either be listed in the Terms of Service or will be presented to you for your acceptance before you use the supplemental Service.
16.11. Amendment. Please note that the Terms are subject to change by Goally in its sole discretion at any time. When changes are made, Goally will make a new copy of the Terms of Service available on the Website. We will also update the “Last Updated” date on the Terms of Service. If we make any material changes, and you have registered with us to create an Account, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. The Company may require you to provide consent to the updated Terms in a specified manner before further use of 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 Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s).
Last Updated: December 6, 2018