Terms of Use

1.INTRODUCTION

Welcome to Gooten (“Gooten”, “we”, “us” and “our”). Gooten provides digital innovation and the power of making design and technology connect.

By accessing and using the Gooten platform, website or any of our software applications, and any songs, artwork, text, graphics, photos, videos or other materials or information uploaded, downloaded or appearing thereon (collectively, the “Platform”), you are entering into a binding agreement with us. The terms and conditions of the agreement between you and us are set forth in these Terms of Service (“Terms”) and our Privacy Policy. Please read these Terms and the Privacy Policy carefully. By using the Platform, or by creating a user account, you signify your acceptance of these Terms, as they may be amended from time to time in Gooten’s sole discretion.

These Terms do not apply to the practices of third parties that we do not own or control, including but not limited to any third party websites, services and applications (“Third Party Services”) that you elect to access through the Platform or to individuals that we don't manage or employ. We don't take responsibility for the content of those Third Party Services. We encourage you to carefully review the terms of service of all Third Party Services you access through the Platform.

If you have any questions or comments about these Terms, please contact us at hello@gooten.com.

2.BASIC REQUIREMENTS OF USE

IN ORDER TO USE THE PLATFORM, YOU MUST BE 18 OR OLDER, OR BE 13 OR OLDER AND HAVE YOUR PARENT OR GUARDIAN’S CONSENT. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between 13 and 18 years old, be advised that you are fully responsible for his or her use of the Platform, and any and all legal liability that he or she may incur. The Platform is not directed to people under age 13. If you are under age 13 you may not, under any circumstances or for any reason, use the Platform. By accessing or using the Platform, you represent and warrant that you are 13 or older. You must also have the power to enter into a binding contract with us and not be barred from doing so under any applicable law.

3.GENERAL INFORMATION

Breakout Commerce, Inc. d/b/a Gooten, is a Delaware corporation, with a principal place of business located at 222 Broadway, New York, NY 10038. If you’d like to get in touch to learn more about our business, please email hello@gooten.com. If you have specific product feedback, or are experiencing technical issues, please email hello@gooten.com.

4.INTELLECTUAL PROPERTY RIGHTS RESERVED

You acknowledge and agree that (excluding the User Generated Content) Gooten retains all right, title and interest in and to all data, information, content and materials provided on or through the Platform (including, without limitation, the selection and arrangement of elements displayed on or through the Platform, the compilation of all content and materials on the Platform, and the business process, procedures, methods and techniques used in the Platform) and all associated patents, copyrights, trademarks, and other intellectual property and proprietary rights recognized anywhere in the world. Gooten™, and the Gooten logo are the sole and exclusive trademarks of Gooten (or its licensors) and all other proprietary trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the Platform are the sole and exclusive property of Gooten. You may not use Gooten’s intellectual property, including, without limitation, its trademarks, without Gooten’s prior written consent. All rights are expressly reserved.

All third party trademarks, logos, photographs, images, audio and audio-visual content, programming, and other intellectual property contained on or within the Platform are the property of the respective third parties, including the respective content owners, and may be protected by applicable copyright, trademark or other intellectual property laws and treaties. Use of third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to Gooten to enforce any of your rights in relation thereto.

5.LIMITED LICENSE

Gooten grants you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable and revocable license to access and use the Platform, subject to all of the terms and conditions of these Terms. You may not (i) copy, reproduce, record, or make available to the public any part of the Platform or content delivered to you via the Platform (other than your own User Generated Content), (ii) use the Platform to import or copy any local files you do not have the legal right to import or copy in this way, (iii) reverse-engineer, decompile, disassemble, modify or create derivative works based on the Platform or any part thereof (other than your own User Generated Content), (iv) circumvent any technology use by Gooten, its licensors, or any third party to protect content accessible through the Platform, (v) rent or lease any part of the Platform, (vi) circumvent any territorial restriction applied by Gooten, (vii) manipulate the Platform by using a script or other automated process, (viii) remove or alter any copyright, trademark or other intellectual property notices contained on or provided through the Platform, or (ix) provide your password to any other party or use any other party’s user name and password.

6.ACCOUNTS AND SECURITY

To use the Platform, you will need to create a user account with us. When you create or reconfigure a user account with us, you are required to provide us with the following information: first name, surname, company name, e-mail address, website address, user name, password, mailing address and telephone number (collectively, “User Information”). Also, financial details such as your bank account number and/or credit card number will be collected by us and processed if you make a purchase through the Platform (collectively, “Financial Information,” and together with Registration Information, “Registration Information”). Some of this Registration Information, for example, your username, may be listed on the Platform, and in search results and may be accessible to users of the Platform and to the public generally. You agree that all Registration Information you provide to Gooten for purposes of creating an account will be true, accurate, current and complete. You agree that we may take steps to verify the accuracy of Registration Information you provide.

In order to keep your account with us secure, you should not share your password or log-in credentials with any other person. Your password and/or log-in credentials protect your user account, and you are solely responsible for keeping such information confidential and secure. You understand that you are responsible for any and all use of your username and password on the Platform. We cannot and will not be liable for any loss or damage arising from your failure to safeguard your password. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.

7.PRIVACY

Gooten is concerned about your privacy rights. All information about you including our handling of your Registration Information is subject to our Privacy Policy. Gooten’s Privacy Policy is incorporated by reference into these Terms.

8.CONTENT PROVIDED BY YOU

You understand that all text, images, photographs, or other materials provided or uploaded by you (“User Generated Content”), whether publicly posted or privately transmitted, on or through the Platform, are your sole responsibility. You, and not Gooten, are entirely responsible for all User Generated Content that you upload, post, email, transmit, distribute or otherwise make available on or through the Platform or that is provided or transmitted through your account. For each piece of User Generated Content that you submit, you represent and warrant that: (i) you have the right to submit the User Generated Content to us and grant the licenses set forth in this Section 8; (ii) we will not need to obtain licenses from any third party or pay royalties to any third party to use such User Generated Content; (iii) the User Generated Content does not infringe, violate or misappropriate any third party’s rights, including intellectual property rights and privacy rights; and (iv) the User Generated Content complies with these Terms and all applicable laws.

Gooten does not actively monitor or control any content generated by you or any other user of the Platform that is posted on or through the Platform and, as such, does not guarantee the accuracy, reliability or quality of such content. You understand that by using the Platform, you may be exposed to content that you may consider offensive, indecent or objectionable. Under no circumstances will Gooten be liable in any way for any User Generated Content or other content posted by any other user of the Platform, including any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available on or through the Platform. You agree that Gooten may, in its sole discretion, refuse to post, store or transmit any User Generated Content submitted by you and may move, remove, edit or modify any such User Generated Content for any reason at any time.

You acknowledge, consent and agree that Gooten may access, preserve and disclose account information and/or User Generated Content that you provide if Gooten is required or compelled to do so by law or if it believes in good faith that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce these Terms, (iii) respond to claims that any User Generated Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Gooten, its employees, directors or officers, partners and agents or members of the public.

By posting, displaying, sharing or distributing the User Generated Content on or through the Platform, you grant Gooten and its affiliates, and their respective successors and assigns, a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license to use, reproduce, distribute, transmit, display, publicly perform, edit, modify, adapt, translate and reformat such User Generated Content in connection with the operation of the Platform. You agree that this license includes the right for Gooten to make such User Generated Content available to other companies, organizations or individuals who partner with Gooten, subject to these Terms.

By posting, displaying, sharing or distributing User Generated Content on or through the Platform, you represent and warrant that you own the rights in such User Generated Content or are otherwise authorized to post, display, perform, transmit or distribute the User Generated Content.

Any feedback, comments, or suggestions you may provide regarding us, or the Platform is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.

9.PROHIBITED USES OF THE PLATFORM

You will comply with all applicable laws, statutes, ordinances and regulations in your use of the Platform. Gooten may immediately terminate your account, or suspend access to your account, in its sole discretion and without notice, for conduct that Gooten reasonably believes is: (i) illegal, fraudulent, harassing or abusive, (ii) a violation of these Terms, or (iii) harmful to other users, third parties, or Gooten’s business.

Use of your account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice. In addition, Gooten may terminate your account if you file any claim against Gooten, or any claim that in any way involves Gooten. All images processed through the Gooten network of vendors are subject to all copyright, child pornography, child abuse and other applicable laws. Any perceived violations of law will be reported by Gooten to applicable law enforcement authorities. Note that Gooten's vendors may, at their sole discretion, reject an image or item for processing they deem to be objectionable. Decisions made by the vendor shall be deemed as final and are not subject to arbitration or other intervention by Gooten.

You agree not to engage in any activity on the Platform or upload User Generated Content, including registering and/or using a username, which is or includes material that: (a) is offensive, abusive, defamatory, pornographic or obscene, (b) is illegal, or intended to promote or commit and illegal act of any kind, including but not limited to, violations of intellectual property rights, privacy rights or proprietary rights of Gooten or a third party, (c) includes personal data of third parties or is intended to solicit such personal data, (d) includes malicious content such as malware, Trojan horses or viruses, or otherwise interferes with the proper functioning of the Platform or with any user’s access to the Platform, (e) is intended to or does harass or bully any person, (f) impersonates or misrepresents your identity or your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading (in which case, Gooten may at any time and in its sole discretion reclaim your username), (g) uses automated means to artificially promote content, (h) involves the transmission of unsolicited mass mailing (“spam”), junk mail, chain letters, or similar communications, (i) involves commercial or sales activities such as advertising, contests, sweepstakes, or pyramid schemes, (j) interferes with or disrupts the Platform, tampers with or attempts to prove, scan, or test for vulnerabilities in the Platform or Gooten’s computer systems or network, or breaches any of Gooten’s security, encryption or authentication measures, (k) harms or exploits people under the age of 18, or (l) conflicts with these Terms, in each case as determined by Gooten. You may provide us with additional information in connection with your use of the Platform, including: (i) transaction information you provide when you request information or use the Platform, (ii) location information when you visit and use the Platform, including location information either provided by a mobile device interacting with the Platform, or associated with your IP address, where we are permitted by applicable law to process this information, and (iii) usage, viewing and technical data when you visit and use the Platform or open e-mails and other communications we send to you.

We may use your contact information to send you information about the Platform or to advertise and market to you[A1]. You may unsubscribe from these messages by following the instructions contained within the messages or by making changes to your account settings.

Our servers automatically record information ("Log Data") created by your use of the Platform. Log Data may include information such as your IP address, browser type, the referring domain, pages visited, your mobile carrier, device and application IDs, and search terms. Other actions, such as interactions with our website, applications and advertisements, may also be included in Log Data.

10.WARRANTY DISCLAIMERS

YOUR ACCESS TO AND USE OF THE PLATFORM IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU ACCESS AND USE THE PLATFORM AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, GOOTEN DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE MAKE NO WARRANTY AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE PLATFORM OR ANY CONTENT THEREON.

WHILE WE USE REASONABLE EFFORTS TO KEEP THE PLATFORM ACCESSIBLE, THE PLATFORM MAY BE UNAVAILABLE FROM TIME TO TIME FOR ANY REASON INCLUDING, WITHOUT LIMITATION, ROUTINE MAINTENANCE. YOU UNDERSTAND AND ACKNOWLEDGE THAT DUE TO CIRCUMSTANCES BOTH WITHIN AND OUTSIDE OF OUR CONTROL ACCESS TO THE PLATFORM MAY BE INTERRUPTED, SUSPENDED OR TERMINATED. FURTHER, WE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES SUSTAINED AS A RESULT OF SUCH INTERRUPTIONS, SUSPENSIONS OR TERMINATIONS.

Because we do not control the security of the Internet or other networks you use to access the Platform or communicate with us, we can’t be, and are not responsible for, the security of User Generated Content and other information that you choose to communicate with us and the Platform while such information is being transmitted. In addition, we are not responsible for any User Generated Content or other data lost during transmission.

In addition, Gooten does not warrant, endorse, guarantee or assume responsibility for any third party application, third party application content, User Generated Content, content posted to the Platform by other users, or any other product or service advertised or offered by a third party on or through the Platform or any Third Party Site, or featured in any banner or other advertising.

11.LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL Gooten OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, STOCKHOLDERS, JOINT VENTURERS, LICENSORS, SUPPLIERS, VENDORS, DISTRIBUTORS, ADVERTISERS AND OTHER CONTRACTING PARTIES, OR ANY OF THEM, BE LIABLE WITH RESPECT TO THE PLATFORM, YOUR USE OF THE PLATFORM OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY Gooten OR ANY OTHER SUBJECT MATTER OF THESE TERMS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, FOR (I) ANY LOST OR CORRUPTED DATA, LOST PROFITS, LOSS OR DAMAGE TO ANY COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE, OR (II) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF Gooten AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, STOCKHOLDERS, JOINT VENTURERS, LICENSORS, SUPPLIERS, VENDORS, DISTRIBUTORS, ADVERTISERS AND OTHER CONTRACTING PARTIES, OR ANY OF THEM, TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LIMITATION OF LIABILITY, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

12.TERMINATION

You agree that Gooten, in its sole discretion and without notice or liability to you, may terminate or suspend your use of, or access to, the Platform at any time if Gooten believes in good faith that you (i) you have violated or acted inconsistently with any provision of these Terms or any applicable law, rule or regulation or (ii) have engaged in conduct that Gooten reasonably determines to be inappropriate or unacceptable. In addition, Gooten may in its sole discretion, and at any time, discontinue providing the Platform, or any part thereof, with or without notice to you.

13.INDEMNITY

You agree to defend, indemnify and hold Gooten and its affiliates, and their respective successors, assigns, employees, consultants, agents, directors, officers, members and stockholders, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) that are attributable to your actions or fault and arise out of (i) your access, use or misuse of any of the Platform, (ii) your breach or alleged breach of these Terms, (iii) your violation or of any law, rule, regulation or rights of others in connection with your use of any of the Platform including, without limitation, infringement of anyone else’s intellectual property rights, (iv) your User Generated Content, or (v) your use or disclosure of another person’s personal information including, without limitation, financial or credit information. We reserve the right to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.

14.COPYRIGHT INFRINGEMENT

Gooten respects the intellectual property rights of others and we ask our users to do the same. If you believe a user of the Platform is infringing your copyright or the copyright of any third party, please notify our designated copyright agent in writing at the following address: Attn: Copyright Agent
c/o Breakout Commerce, Inc. d/b/a Gooten, 222 Broadway, New York, NY 10038, or via email to hello@Gooten.com.

Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit Gooten to locate the material, (iv) information reasonably sufficient to permit Gooten to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted, (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

We reserve the right to remove User Generated Content and other content on the Platform alleged to be infringing and to terminate the right to use the Platform by any user who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.

15.EQUITABLE REMEDIES

You hereby agree that Gooten would be irreparably damaged if these Terms were not specifically enforced, and therefore you agree that Gooten will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms, in addition to such other remedies as Gooten may otherwise have available to it under applicable laws.

16.MISCELLANEOUS

Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.

Should any provision of these Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or unenforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of these Terms, and the application of that provision shall be enforced to the extent permitted by law.

We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our control, including, without limitation, mechanical, electronic or communications failure or degradation.

17.GOVERNING LAW; JURISDICTION

These Terms will be is governed by, and will be construed under, the laws of the United States of America and the laws of the State of New York, without regard to choice of law principles. You and Gooten agree to the exclusive jurisdiction of the state and federal courts in New York, New York to resolve any dispute claim or controversy that arises in connection with these Terms.

18.MODIFICATIONS

Gooten may modify or update these Terms at any time without notice and at our sole discretion. Any additional or different terms in these Terms will be effective upon being posted on or in connection with the Platform. It is your responsibility to review these Terms periodically. Your continued use of any of the Platform following the posting of any additional or different terms in these Terms constitutes your irrevocable acceptance of those additional or different terms. IF YOU DO NOT AGREE TO THESE TERMS, IMMEDIATELY STOP ACCESSING AND/OR USING THE PLATFORM.

© 2015 Breakout Commerce, Inc. d/b/a Gooten.