WHATAGOOBER Terms of Use
These Terms of Use are effective on July 25, 2014.
By accessing or using the WHATAGOOBER website, the WHATAGOOBER service, or any
applications (including mobile applications) made available by WHATAGOOBER, including but
not limited to GooberGames (together, the "Service"), however accessed, you agree to be bound
by these terms of use ("Terms of Use"). The Service is owned or controlled by WHATAGOOBER,
LLC ("WHATAGOOBER "). These Terms of Use affect your legal rights and obligations. If
you do not agree to be bound by all of these Terms of Use, do not access or use the Service.
You agree that your use or access of the service represents your consent and agreement to
these Terms of Use, as may be amended from time to time by WHATAGOOBER.
There may be times when we offer a special feature that has its own terms and conditions that
apply in addition to these Terms of Use. In those cases, the terms specific to the special feature
control to the extent there is a conflict with these Terms of Use.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN
TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU
AGREE THAT DISPUTES BETWEEN YOU AND WHATAGOOBER WILL BE
RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR
RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE
ARBITRATION.
Basic Terms
- You must be at least 13 years old to use the Service.
- You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful,
pornographic or sexually suggestive photos or other content via the Service.
- You are responsible for any activity that occurs through your account and you agree you will not
sell, transfer, license or assign your account, followers, username, or any account rights. With the
exception of people or businesses that are expressly authorized to create accounts on behalf of
their employers or clients, WHATAGOOBER prohibits the creation of and you agree that you will
not create an account for anyone other than yourself. You also represent that all information you
provide or provided to WHATAGOOBER upon registration and at all other times will be true,
accurate, current and complete and you agree to update your information as necessary to maintain
its truth and accuracy.
- You agree that you will not solicit, collect or use the login credentials of other WHATAGOOBER
users.
- You are responsible for keeping your password secret and secure.
- You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or
entities and you must not post private or confidential information of yourself or any other person
or entity, via the Service, including, without limitation, your or any other person's credit card
information, social security or alternate national identity numbers, non-public phone numbers or
non-public email addresses.
- You may not use the Service for any illegal or unauthorized purpose. You agree to comply with
all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your
use of the Service and your Content (defined below), including but not limited to, copyright laws.
- You are solely responsible for your conduct and any data, text, files, information, usernames,
images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of
authorship, applications, links and other content or materials (collectively, "Content") that you
submit, post or display on or via the Service.
- You must not change, modify, adapt or alter the Service or change, modify or alter another website
so as to falsely imply that it is associated with the Service or WHATAGOOBER.
- You must not access WHATAGOOBER 's private API by means other than those permitted by
WHATAGOOBER. Use of WHATAGOOBER 's API is subject to a separate set of terms available
here:
- You must not create or submit unwanted email, comments, likes or other forms of commercial or
harassing communications (a/k/a "spam") via the Service.
- You must not interfere or disrupt the Service or servers or networks connected to the Service,
including by transmitting any worms, viruses, spyware, malware or any other code of a destructive
or disruptive nature. You may not inject content or code or otherwise alter or interfere with the
way any WHATAGOOBER page is rendered or displayed in a user's browser or device.
- You must not create accounts with the Service through unauthorized means, including but not
limited to, by using an automated device, script, bot, spider, crawler or scraper.
- You must not attempt to restrict another user from using or enjoying the Service and you must not
encourage or facilitate violations of these Terms of Use or any other WHATAGOOBER terms.
- You will comply with the Terms of Use for Instagram , Facebook , LinkedIn , Twitter , and Google+ as a condition of use of the
WHATAGOOBER service. Any violation of these terms will be considered a violation of the WHATAGOOBER Terms of Use.
- Violation of these Terms of Use may, in WHATAGOOBER 's sole discretion, result in termination
of your WHATAGOOBER account. You understand and agree that WHATAGOOBER cannot
and will not be responsible for the Content posted on the Service and you use the Service at your
own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible
legal exposure for WHATAGOOBER, WHATAGOOBER can stop providing all or part of the
Service to you.
General Conditions
- WHATAGOOBER reserves the right to modify or terminate the Service or your access to the
Service for any reason, without notice, at any time, and without liability to you. You may
deactivate your WHATAGOOBER account at any time. If we terminate your access to the Service
or you deactivate your account, your photos, comments, likes, friendships, and all other data will
no longer be accessible through your account (e.g., users will not be able to navigate to your
username and view your photos), but those materials and data may persist and appear within the
Service (e.g., if your Content has been reshared by others).
- Upon termination, all licenses and other rights granted to you in these Terms of Use will
immediately cease.
- We reserve the right, in our sole discretion, to change these Terms of Use ("Updated Terms")
from time to time. Unless we make a change for legal or administrative reasons, we will provide
reasonable advance notice before the Updated Terms become effective. You agree that we may
notify you of the Updated Terms by posting them on the Service, and that your use of the Service
after the effective date of the Updated Terms (or engaging in such other conduct as we may
reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should
review these Terms of Use and any Updated Terms before using the Service. The Updated Terms
will be effective as of the time of posting, or such later date as may be specified in the Updated
Terms, and will apply to your use of the Service from that point forward. These Terms of Use will
govern any disputes arising before the effective date of the Updated Terms.
- We reserve the right to refuse access to the Service to anyone for any reason at any time.
- We reserve the right to force forfeiture of any username for any reason.
- We may, but have no obligation to, remove, edit, block, and/or monitor Content or accounts
containing Content that we determine in our sole discretion violates these Terms of Use.
- You are solely responsible for your interaction with other users of the Service, whether online or
offline. You agree that WHATAGOOBER is not responsible or liable for the conduct of any user.
WHATAGOOBER reserves the right, but has no obligation, to monitor or become involved in
disputes between you and other users related to the Service. You agree to exercise common sense
and your best judgment when interacting with others, including when you submit or post Content
or any personal or other information.
- There may be links from the Service, or from communications you receive from the Service, to
third-party web sites or features. There may also be links to third-party web sites or features in
images or comments within the Service. The Service also includes third-party content that we do
not control, maintain or endorse. Functionality of the Service may also permit interactions between
the Service and a third-party web site or feature, including applications that connect the Service or
your profile on the Service with a third-party web site, application, or feature. For example, the
Service may include a feature that enables you to share Content from the Service or your Content
with a third party, which may be publicly posted on that third party's service or application. Using
this functionality typically requires you to login to your account on the third-party service and you
do so at your own risk. WHATAGOOBER does not control any of these third-party web services,
application, or any of their content. You expressly acknowledge and agree that WHATAGOOBER
is in no way responsible or liable for any such third-party services, application, or features. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND OR
ACCESSED THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD
PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that
connect the Service or your profile on the Service with a third-party service (each, an
"Application") and such Application may interact with, connect to or gather and/or pull
information from and to your Service profile. By using such Applications, you acknowledge and
agree to the following: (i) if you use an Application to share information, you are consenting to
information about your profile on the Service being shared; (ii) your use of an Application may
cause personally identifying information to be publicly disclosed and/or associated with you, even
if WHATAGOOBER has not itself provided such information; and (iii) your use of an Application
is at your own option and risk, and you will hold the WHATAGOOBER Parties (defined below)
harmless for activity related to the Application.
- You agree that you are responsible for all data charges you incur through use of the Service.
- We prohibit crawling, scraping, caching or otherwise accessing any content on the Service via
automated means, including but not limited to, user profiles and photos (except as may be the
result of standard search engine protocols or technologies used by a search engine with
WHATAGOOBER 's express consent).
Rights
- WHATAGOOBER does not claim ownership of any Content that you post on or through the
Service. Instead, you hereby grant to WHATAGOOBER a non-exclusive, perpetual, fully paid
and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post
on or through the Service, subject to the Service's Privacy Policy, available here (insert here). You
can choose who can view your Content and activities, including your photos, as described in the
Privacy Policy.
- Some of the Service is supported by advertising revenue and may display advertisements and
promotions, and you hereby agree that WHATAGOOBER may place such advertising and
promotions on the Service or on, about, or in conjunction with your Content. The manner, mode
and extent of such advertising and promotions are subject to change without specific notice to you.
- You acknowledge that we may not always identify paid services, sponsored content, or commercial
communications as such.
- You represent and warrant that: (i) you own the Content posted by you on or through the Service
or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the
posting and use of your Content on or through the Service does not violate, misappropriate or
infringe on the rights of any third party, including, without limitation, privacy rights, publicity
rights, copyrights, trademark, patent, and/or other intellectual property rights; (iii) you agree to
pay for all royalties, fees, and any other monies owed by reason of Content you post on or through
the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your
jurisdiction. 5. WHATAGOOBER has a patent pending covering the Service. The Service contains content
owned or licensed by WHATAGOOBER ("WHATAGOOBER Content"). WHATAGOOBER
Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between
you and WHATAGOOBER, WHATAGOOBER owns and retains all rights in the
WHATAGOOBER Content and the Service. You will not remove, alter or conceal any copyright,
trademark, service mark or other proprietary rights notices incorporated in or accompanying the
WHATAGOOBER Content and you will not reproduce, modify, adapt, prepare derivative works
based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise
exploit the WHATAGOOBER Content.
- The WHATAGOOBER name and logo are trademarks of WHATAGOOBER, and may not be
copied, imitated or used, in whole or in part, without the prior written permission of
WHATAGOOBER.
- Although it is WHATAGOOBER 's intention for the Service to be available as much as possible,
there will be occasions when the Service may be interrupted, including, without limitation, for
scheduled maintenance or upgrades, for emergency repairs, or due to failure of
telecommunications links and/or equipment. Also, WHATAGOOBER reserves the right to
remove any Content from the Service for any reason, without prior notice. Content removed from
the Service may continue to be stored by WHATAGOOBER, including, without limitation, in
order to comply with certain legal obligations, but may not be retrievable without a valid court
order. Consequently, WHATAGOOBER encourages you to maintain your own backup of your
Content. In other words, WHATAGOOBER is not a backup service and you agree that you will
not rely on the Service for the purposes of Content backup or storage. WHATAGOOBER will not
be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of
any Content. You also acknowledge that the Internet may be subject to breaches of security and
that the submission of Content or other information may not be secure.
- You agree that WHATAGOOBER is not responsible for, and does not endorse, Content posted
within the Service. WHATAGOOBER does not have any obligation to prescreen, monitor, edit,
or remove any Content. If your Content violates these Terms of Use, you may bear legal
responsibility for that Content.
- Except as otherwise described in the Service's Privacy Policy, available at (insert link), as between
you and WHATAGOOBER any Content will be non-confidential and non-proprietary and
WHATAGOOBER will not be liable for any use or disclosure of Content. You acknowledge and
agree that your relationship with WHATAGOOBER is not a confidential, fiduciary, or other type
of special relationship, and that your decision to submit any Content does not place
WHATAGOOBER in a position that is any different from the position held by members of the
general public, including with regard to your Content. None of your Content will be subject to any
obligation of confidence on the part of WHATAGOOBER, and WHATAGOOBER will not be
liable for any use or disclosure of any Content you provide.
- It is WHATAGOOBER 's policy not to accept or consider content, information, ideas, suggestions
or other materials other than those we have specifically requested and to which certain specific
terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly,
WHATAGOOBER does not accept unsolicited materials or ideas, and takes no responsibility for
any materials or ideas so transmitted. If, despite our policy, you choose to send us content,
information, ideas, suggestions, or other materials, you further agree that WHATAGOOBER is
free to use any such content, information, ideas, suggestions or other materials, for any purposes
whatsoever, including, without limitation, developing and marketing products and services,
without any liability or payment of any kind to you.
Reporting Copyright and Other IP Violations
- WHATAGOOBER respects the intellectual property rights of others. In accordance with the
Digital Millennium Copyright Act ("DMCA") and other applicable laws, we have adopted a policy
of, upon notice, restricting access to or deleting content that is alleged to infringe a third party's
copyright and, in appropriate circumstances and in our sole discretion, terminating account holders
or other users of the Services who are deemed to be repeat infringers of a third party's copyrighted
work.
- If you believe that anything on the Services infringes any copyright that you own or control, you
may file a notice of such infringement, in compliance with the requirements of 17 U.S.C. §
512(c)(3), with our designated agent:
WhataGoober, LLC
Attn: Dibbon Rowe
1610 Woodstead Court, Suite 100
The Woodlands, TX 77380
Disclaimer of Warranties
THE SERVICE, INCLUDING, WITHOUT LIMITATION, WHATAGOOBER
CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL
FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER
WHATAGOOBER NOR ITS PARENT COMPANY NOR ANY OF THEIR EMPLOYEES,
MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE "WHATAGOOBER
PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR
ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO:
(A) THE SERVICE; (B) THE WHATAGOOBER CONTENT; (C) USER CONTENT; OR
(D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO
WHATAGOOBER OR VIA THE SERVICE. IN ADDITION, THE WHATAGOOBER
PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM,
TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM
COMPUTER VIRUS.
THE WHATAGOOBER PARTIES DO NOT REPRESENT OR WARRANT THAT THE
SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE
CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE
SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS,
INCLUDING, WITHOUT LIMITATION, VIRUSES. THE WHATAGOOBER PARTIES
DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE
INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS
ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF
THE SERVICE IS AT YOUR SOLE RISK. THE WHATAGOOBER PARTIES DO NOT
WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR
JURISDICTION, AND THE WHATAGOOBER PARTIES SPECIFICALLY DISCLAIM
SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE
DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE
DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S
LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT
YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS
OR USE THE SERVICE.
THE WHATAGOOBER PARTIES DO NOT ENDORSE CONTENT AND
SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY
PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL,
CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR
OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING
FROM ANY CONTENT.
Limitation of Liability; Waiver
UNDER NO CIRCUMSTANCES WILL THE WHATAGOOBER PARTIES BE LIABLE
TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT
LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE
DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE
WHATAGOOBER CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY
TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN
CONNECTION WITH AN INVESTIGATION BY THE WHATAGOOBER PARTIES OR
LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER
PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH
COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS
OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY
USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR
TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY
SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR
TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER
TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK
STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR
MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE WHATAGOOBER
PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT
LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE,
ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR
DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE WHATAGOOBER
PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY,
INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME
STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU. IN NO EVENT WILL THE WHATAGOOBER PARTIES TOTAL
LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION
EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR
INJURIES THAT ARISE OUT OF WHATAGOOBER 'S ACTS OR OMISSIONS, THE
DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT
TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF
ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED
OR CONTROLLED BY THE WHATAGOOBER PARTIES, AND YOU WILL HAVE NO
RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION,
DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB
SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR
CONTROLLED BY THE WHATAGOOBER PARTIES.
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING
RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR
UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY
EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF
CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH
PROVIDES AS FOLLOWS: "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."
WHATAGOOBER IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT,
INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND
DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD
PARTIES.
Indemnification
You (and also any third party for whom you operate an account or activity on the Service) agree
to defend (at WHATAGOOBER's request), indemnify and hold the WHATAGOOBER Parties
harmless from and against any claims, liabilities, damages, losses, and expenses, including without
limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of
the following (including as a result of your direct activities on the Service or those conducted on
your behalf): (i) your Content or your access to or use of the Service; (ii) your breach or alleged
breach of these Terms of Use; (iii) your violation of any third-party right, including without
limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv)
your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any
governmental and quasi-governmental authorities, including, without limitation, all regulatory,
administrative and legislative authorities; or (v) any misrepresentation made by you. You will
cooperate as fully required by WHATAGOOBER in the defense of any claim. WHATAGOOBER
reserves the right to assume the exclusive defense and control of any matter subject to
indemnification by you, and you will not in any event settle any claim without the prior written
consent of WHATAGOOBER.
Arbitration
Except if you opt-out as set forth below, or except for disputes relating to: (1) your or
WHATAGOOBER's intellectual property (such as trademarks, trade dress, domain names, trade
secrets, copyrights and patents); (2) violations of the API Terms; or (3) violations of provisions 13
or 15 of the Basic Terms, above ("Excluded Disputes"), you agree that all disputes between you
and WHATAGOOBER (whether or not such dispute involves a third party) with regard to your
relationship with WHATAGOOBER, including without limitation disputes related to these Terms
of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by
binding, individual arbitration under the American Arbitration Association's rules for arbitration
of consumer-related disputes and you and WHATAGOOBER hereby expressly waive trial by jury.
You may bring claims only on your own behalf. Neither you nor WHATAGOOBER will
participate in a class action or class-wide arbitration for any claims covered by this agreement.
You also agree not to participate in claims brought in a private attorney general or representative
capacity, or consolidated claims involving another person's account, if WHATAGOOBER is a
party to the proceeding. This dispute resolution provision will be governed by the Federal
Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a
hearing date within one hundred and sixty (160) days of filing the case, then either
WHATAGOOBER or you can elect to have the arbitration administered instead by the Judicial
Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law
notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that
conflict with these Terms of Use.
You may opt out of this agreement to arbitrate. If you do so, neither you nor WhatAGoober can
require the other to participate in an arbitration proceeding. To opt out, your opt out notice must
be received by WHATAGOOBER in writing up to and including 30 days from the date that you
first became subject to this arbitration provision. You must use the following address to opt out:
WhataGoober, LLC
Attn: Dibbon Rowe
1610 Woodstead Court, Suite 100
The Woodlands, TX 77380
You must include your name and residence address, the email address you use for your
WHATAGOOBER account, and a clear statement that you want to opt out of this arbitration
agreement.
This arbitration agreement will survive the termination of your relationship with
WHATAGOOBER.
Time Limitation on Claims
You agree that any claim you may have arising out of or related to your relationship with
WHATAGOOBER must be filed within one year after such claim arose; otherwise, your claim is
permanently barred.
Governing Law & Venue
These Terms of Use are governed by and construed in accordance with the laws of the State of
TEXAS, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY
NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR
THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at
law or in equity relating to the arbitration provision of these Terms of Use, the Excluded Disputes
or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with
WHATAGOOBER exclusively in a state or federal court located in Houston, Texas, and to submit
to the personal jurisdiction and venue of the courts located in Harris County for the purpose of
litigating all such disputes.
If any provision of these Terms of Use is held to be unlawful, void, or for any reason unenforceable
during arbitration or by a court of competent jurisdiction, then that provision will be deemed
severable from these Terms of Use and will not affect the validity and enforceability of any
remaining provisions. WHATAGOOBER 's failure to insist upon or enforce strict performance of
any provision of these Terms will not be construed as a waiver of any provision or right. No waiver
of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. WHATAGOOBER reserves the right to change this dispute resolution
provision, but any such changes will not apply to disputes arising before the effective date of the
amendment. This dispute resolution provision will survive the termination of any or all of your
transactions with WHATAGOOBER.
Entire Agreement
If you are using the Service on behalf of a legal entity, you represent that you are authorized to
enter into an agreement on behalf of that legal entity. These Terms of Use constitute the entire
agreement between you and WHATAGOOBER and governs your use of the Service, superseding
any prior agreements between you and WHATAGOOBER. You will not assign the Terms of Use
or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily
or by operation of law, without the prior written consent of WHATAGOOBER. Any purported
assignment or delegation by you without the appropriate prior written consent of
WHATAGOOBER will be null and void. WHATAGOOBER may assign these Terms of Use or
any rights hereunder without your consent. If any provision of these Terms of Use is found by a
court of competent jurisdiction to be invalid or otherwise unenforceable, the parties nevertheless
agree that such portion will be deemed severable from these Terms of Use and will not affect the
validity and enforceability of the remaining provisions, and the remaining provisions of the Terms
of Use remain in full force and effect. Neither the course of conduct between the parties nor trade
practice will act to modify the Terms of Use. These Terms of Use do not confer any third-party
beneficiary rights.
Territorial Restrictions
The information provided within the Service is not intended for distribution to or use by any person
or entity in any jurisdiction or country where such distribution or use would be contrary to law or
regulation or which would subject WHATAGOOBER to any registration requirement within such
jurisdiction or country. We reserve the right to limit the availability of the Service or any portion
of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion,
and to limit the quantities of any content, program, product, service or other feature that
WHATAGOOBER provides.
Software related to or made available by the Service may be subject to United States export
controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into
(or to a national or resident of) any country to which the United States has embargoed goods; or
(b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Deny Orders. By downloading any software related to the
Service, you represent and warrant that you are not located in, under the control of, or a national
or resident of, any such country or on any such list.
The effective date of these Terms of Use is July 25, 2014. These Terms of Use were written in
English (US). To the extent any translated version of these Terms of Use conflicts with the English
version, the English version controls.