Last Updated: March 28, 2019
Gubagoo Inc. (“Gubagoo”) a Florida company, operates a communications platform (the “Platform”) which connects an automotive dealership (the “Dealership”) with members of the public. By using this Platform, including (without limitation) by any one or more of:
- Interacting with the Live Chat function
- Registering for Virtual Retailing
- Claiming an offer through the Platform
- Sending a text to Gubagoo or the Dealership
You should know that:
- These Terms may limit Your ability to make claims against Gubagoo in court, and require arbitration of any disputes;
- These Terms limit Gubagoo’s liability to You to a maximum of $100;
- Gubagoo is not responsible for the content You may access through the Platform, and does not guarantee the accuracy of any information provided through the Platform;
1. Gubagoo’s Role
Gubagoo does not manufacture, distribute, sell, repair, lease, or otherwise deal in vehicles. Gubagoo operates the Platform to connect the Dealership with those looking to buy or service vehicles,
including You. If You make use of the Platform when shopping for or purchasing a vehicle, You are dealing and contracting directly with the Dealership. You acknowledge that Gubagoo will not be a
party to any agreement between You and the Dealership. Nothing in the Platform shall be considered an offer to contract.
Gubagoo works with third-parties, including lenders, credit agencies, and vehicle assessors (“Third-Party Partners”), to provide You with information. Gubagoo is not responsible for any information provided to You through the Platform by the Dealership, or by Third-Party Partners. Gubagoo cannot guarantee the accuracy or currency of any information communicated on or through the Platform, including without limitation information about vehicle prices, model features, or payment plans. The information on the Platform, including without limitation any information about pricing, is not final, and is subject to change by Gubagoo, the Dealership, and Third-Party Partners. This information is provided or linked to for Your convenience, and You use it at your own risk.
2. Your Use of the Platform
You may only use the Platform to communicate with the Dealership, and any Third-Party Partners. Your use of the Platform is at all times subject to these Terms. Gubagoo reserves the right to
terminate or modify Your ability to use the Platform, without notice.
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“Content”) that you upload, post, publish or display (hereinafter, “Upload”) or email or otherwise use via the Platform. You agree to not use the Platform to:
- interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- violate any patent, trademark, trade secret, copyright, right to privacy, publicity or other proprietary right of any party;
- violate any patent, trademark, trade secret, copyright, right to privacy, publicity or other proprietary right of any party;
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Platform;
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of publicity or privacy) of others;
- send or otherwise make available any inappropriate Content, including profane, defamatory, obscene, abusive, racist, indecent, or unlawful Content;
- impersonate any person or entity or make any false statements regarding any agency or affiliation with any entity or create a false identity; or
- do any other thing that may create liability for, or damage the interests of, Gubagoo, the Dealership, or Third-Party Partners.
You agree to release, indemnify and hold Gubagoo and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to Your use of the Platform, Your Content (as defined below), Your violation of these Terms, or Your violation of any rights of any other individual or entity. If You are a California resident, You waive California Civil Code Section 1542, which says: “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.” If You are a resident of another jurisdiction, You waive any comparable statute or doctrine, to the extent it may be waived at law.
You may opt-in and register to access the Platform by SMS by clicking “I agree” in the chat window, clicking the “Start” button within Virtual Retailing, checking the box in the chat window, replying in response to a text from Gubagoo or the Dealership, or sending the first chat or SMS message to Gubagoo or the Dealership. By providing your phone number or email in the manner described above, you expressly consent to receive non-marketing and marketing messages, phone calls, text messages and emails from Gubagoo, the Dealership, and others messaging or calling on their behalf which may included by autodialer. Consent is not required to purchase goods or services. To opt-out of the texting service, simply text or type back the keyword STOP in the SMS conversation after receiving a message, email firstname.lastname@example.org or call Gubagoo at 855-359-2574. Standard SMS, voice, or data charges may apply. Consent is not required to purchase goods or services.
You are responsible for maintaining the confidentiality of Your password and account, if any, and are fully responsible for any and all activities that occur when You, or anyone else accesses the Platform using Your account. You agree to immediately notify Gubagoo of any unauthorized use of Your account or any other breach of security Gubagoo will not be liable for any loss or damage arising from Your failure to comply with these requirements.
If You are under 16 years of age, You are not authorized to use the Platform. If You are over 16, but under 18 years old, You may only use the Platform with the approval of Your parent or guardian.
If You use the Platform on a mobile device, You may incur data, voice, or text messaging charges. As between You and Gubagoo, these charges are Your sole responsibility.
3. Intellectual Property Rights
The Platform contains or reflects content or features (“Platform Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as
expressly authorized by Gubagoo, You agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Platform Content, in
whole or in part.
You agree that You will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods in connection with the Platform. If You are blocked by Gubagoo from accessing the Platform (including by blocking Your IP address), You agree not to implement any measures to circumvent such blocking (e.g., by masking Your IP address or using a proxy IP address). Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited.
The Gubagoo name and logos are trademarks and service marks of Gubagoo (collectively the “Gubagoo Trademarks”). Other company, product, and service names and logos used and displayed via the Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Gubagoo. Nothing in these Terms, or the Platform, should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Gubagoo Trademarks displayed on the Platform, without Gubagoo’s written permission in each instance. All goodwill generated from the use of Gubagoo Trademarks will inure to Gubagoo’s exclusive benefit.
In using the Platform, You may Upload Content (“Your Content”). You agree that You are solely responsible for Your Content, and promise to fully indemnify and hold harmless Gubagoo as against any claim that Your Content infringes a party’s rights, or causes that party harm.
By Uploading Your Content You grant Gubagoo a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use Your Content in connection with the operation of the Platform or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Platform (“Submissions”), provided by You to Gubagoo are non-confidential and Gubagoo will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, (including (without limitation) to correct errors or add functionality to the Platform), without acknowledgment or compensation to You.
You acknowledge that Gubagoo may collect and store Your personal information and behavior within the Platform, and You hereby consent to such collection and storage.
You acknowledge and agree that Gubagoo: 1) may preserve Content; and 2) may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Gubagoo, its users and the public.
If You believe that any Content on the Platform violates Your copyright, You may submit a DMCA-compliant takedown notice via email to email@example.com.
4. No Warranties
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE GREATEST EXTENT PERMISSIBLE BY LAW, GUBAGOO EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
GUBAGOO MAKES NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS.
WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT ALL INFORMATION RELATED TO VEHICLES AVAILABLE ON THE PLATFORM IS SUPPLIED BY THE DEALERSHIP OR OTHER THIRD-PARTY PARTNERS. GUBAGOO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO ANY ACTUAL OR PROSPECTIVE PURCHASER OR OWNER OF ANY VEHICLE AS TO THE EXISTENCE, OWNERSHIP OR CONDITION OF ANY VEHICLE, OR AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ABOUT A VEHICLE ADVERTISED ON THE PLATFORM. GUBAGOO CANNOT AND DOES NOT VERIFY OR WARRANT THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. GUBAGOO RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERROR OR OMISSION ON THE PLATFORM OR IN THE INFORMATION AND CONTENT ACCESSIBLE THROUGH THE PLATFORM .
5. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT GUBAGOO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED
TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GUBAGOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE, RESULTING FROM YOUR USE OF THE PLATFORM. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, GUBAGOO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION
LIMITED TO THE LESSER OF a) YOUR ACTUAL, PROVABLE, LOSSES; OR b) $100.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PLATFORM.
You agree that You are solely responsible for Your interactions and agreements (if any) with the Dealership and/or Third-Party Partners, on or off the Platform. You further agree that Gubagoo will
have no liability or responsibility with respect to such interactions and agreements. Gubagoo reserves the right, but has no obligation, to become involved in any way with disputes between You and
the Dealership or a Third-Party Partner. You agree that You will not seek to involve Gubagoo in any such dispute as a party, whether by way of cross-claim, counterclaim, third-party claim, or any
In the event of any dispute or claim connected with the Platform or these Terms, such dispute or claim will be resolved by binding arbitration under the Revised Florida Arbitration Code. Arbitration may be conducted remotely, or in person. If conducted in person, the arbitration will take place in Boca Raton, Florida, or in such other location as the parties may agree.
Remote arbitrations will be conducted through VirtualCourthouse LLC.
You may initiate a claim online through VirtualCourthouse LLC. Instructions for initiating a claim are available at: https://www.virtualcourthouse.com/index.cfm/category/27/instructions.cfm
You may also initiate a claim by emailing Gubagoo at firstname.lastname@example.org
The arbitrator will be a neutral agreed upon by the parties. If the parties are unable to agree on a neutral, either party may ask VirtualCourthouse LLC to designate a neutral from its approved list. If VirtualCourthouse LLC is unable to do so, either party may apply to a court of competent jurisdiction to designate a neutral to serve as arbitrator.
The arbitration will be conducted informally, under rules agreed to by the parties. If the parties cannot agree on rules, they agree to let the arbitrator determine the rules of the arbitration.
The costs of the arbitration (other than each party’s legal fees) will be paid 50% by You, and 50% by Gubagoo. Each party is responsible for its own legal fees.
7. General Terms
These Terms constitute the entire agreement between You and Gubagoo and govern Your use of the Platform, superseding any prior agreements between You and Gubagoo with respect to the Platform
(including any prior version of these Terms).
These Terms are governed by the law of the State of Florida, without regard to that State’s conflict of law rules or principles. You and Gubagoo agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Palm Beach County, Florida.
The failure of Gubagoo to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
Notwithstanding any other provision in these Terms, You agree that Gubagoo may seek injunctive relief to enforce these Terms or restrain their breach in any court of competent jurisdiction.
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the other provisions of these Terms remain in full force and effect, and the parties agree to substitute a new term that as closely as possible reflects the economic and legal substance of the invalidated term. If the parties cannot agree on a substitute term, they agree to ask a court of competent jurisdiction, or a mutually agreeable neutral party, to create such a term.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose, or be forever barred.
Gubagoo may be contacted as follows:
4800 T-Rex Ave, Suite 350
Boca Raton, Florida 33431