TERMS AND CONDITIONS OF USE AND END USER LICENSE AGREEMENT

Last Revised: March 12, 2009

I. Terms of Use

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEB SITE OR THE WHRRL SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL CONSENTS AND DISCLOSURES THAT MAY BE SET FORTH IN THE WHRRL REGISTRATION PROCESS (AND HEREBY INCORPORATED HEREIN BY THIS REFERENCE). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONSENTS, DO NOT USE THIS WEB SITE OR THE WHRRL SERVICE.

These terms and conditions of use ("Terms of Use") apply exclusively to your access to, and use of, the whrrl.com Web site (the "Site"), which is operated by Pelago, Inc. ("Pelago"), and the software and services provided by Pelago and accessed through the Site and your mobile device (the "Whrrl Service"). These Terms of Use do not alter in any way the terms or conditions of any other agreement you may have with Pelago, or its subsidiaries or affiliates, for products, services or otherwise.

Pelago reserves the right to change or modify any of the terms and conditions contained in the Terms of Use or any policy or guideline of the Site or the Whrrl Service, at any time and in its sole discretion. You agree that such changes and modifications may be made solely by posting the revised Terms of Use or other policies or guidelines on the Site and indicating at the top thereof the date such document was last updated. You expressly agree to such form of notification of changes and modifications and waive any right to receive individual notice of such changes or modifications. Any changes or modification will be effective immediately upon posting of the revisions on the Site. Your continued use of this Site or the Whrrl Service following the posting of any changes or modifications will constitute your acceptance of such changes or modifications. Therefore, you should review the Terms of Use and any applicable policies or guidelines whenever you access the Site or the Whrrl Service in order to determine if such terms, policies or guidelines have changed and to understand the terms and conditions and the policies and guidelines that apply to your use of the Site and the Whrrl Service. If you do not agree to the amended terms, you must stop using the Site and the Service. Pelago may from time to time choose to provide you with additional forms of notice of changes and modifications beyond what is required under these Terms of Use. However, you acknowledge and agree that providing such additional forms of notice in some instances does not require that such additional forms of notice be given in other instances.

  1. Eligibility

    This Site and the Whrrl Service are intended solely for users who are 13 years of age or older, and any use of or access to the Site or the Whrrl Service by anyone under 13 is unauthorized, unlicensed and in violation of these Terms of Use. By using the Whrrl Service or the Site, you represent and warrant that you are thirteen or older and that you agree to and to abide by all of the terms and conditions set forth in these Terms of Use. Pelago may terminate your account, delete your profile and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Whrrl Service or the Site for any reason, or no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 13.

  2. Mobile Services

    Certain of the Whrrl Services require the use of a mobile phone, including the ability to send, receive and reply to Pelago messages using text messaging. Pelago does not charge for any of these messages. However, your carrier's normal, messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost. Typically, most users receive fewer than 30 SMS messages per month. Text "STOP" to 94775 at any time to stop receiving SMS notifications from Whrrl. (You will still receive responses to any messages that you send to Whrrl.) Text "HELP" to 94775 to receive help with using SMS for Whrrl. SMS messaging from Whrrl is compatible with any device that supports SMS, including devices used with AT&T and all major wireless carriers. By using the Whrrl Service, you agree that we may communicate with you regarding Pelago, the Whrrl Service and our partners by SMS, text message, email or other electronic means to your mobile device or email address, including without limitation providing promotional offers and information from third parties. In addition, you understand and agree that if the Whrrl Services include any location-based services, your location may be shared with Pelago and its users in accordance with the privacy settings you select and as otherwise permitted by our privacy policy.

  3. Privacy Policy

    Please refer to our Privacy Policy for information on how Pelago collects, uses and discloses personally identifiable information from its users.

  4. Pelago Software

    Your use of the Whrrl Service may involve the download, installation and use of certain Pelago client software (the "Pelago Software"). Your download, installation and use of any Pelago Software is subject, and you hereby agree to, the terms and conditions of the End User License Agreement ("EULA") set forth below following these Terms of Use.

  5. Copyright and Limited License

    Unless otherwise indicated in the Site, the Site and all content and other materials on the Site and accessible through the Whrrl Service, including, without limitation, the Pelago logo, the Whrrl logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the "Site Materials") are the proprietary property of Pelago or its licensors or users and are protected by U.S. and international copyright laws. You are granted a limited, non-sublicensable license to access and use the Site and the Whrrl Service for your informational, non-commercial and personal use only. Such license is subject to these Terms of Use and does not include: (a) any resale or commercial use of the Site or the Site Materials therein; (b) the distribution, public performance or public display of any Site Materials except in connection with your non-commercial use of the Site and the Whrrl Service; (d) modifying or otherwise making any derivative uses of the Site and the Site Materials, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Site, the Site Materials or any information contained therein, except as expressly permitted on the Site; or (g) any use of the Site or the Site Materials other than for its intended purpose. Any use of the Site or the Site Materials other than as specifically authorized herein, without the prior written permission of Pelago, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.

  6. Repeat Infringer Policy

    In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Pelago has adopted a policy of terminating, in appropriate circumstances and at Pelago's sole discretion, subscribers or account holders who are deemed to be repeat infringers. Pelago may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

  7. Copyright Complaints

    If you believe that anything on the Site infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.

    Alison Allgor
    Pelago, Inc.
    1201 3rd Ave., Suite 800
    Seattle, WA 98101
    Phone: (206) 223-0660
    Fax: (206) 223-0659
    E-Mail: copyright@pelago.com

    We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user's email address in our records, or by written communication sent by first-class mail to a user's address in our records.

  8. Trademarks

    Pelago, , Whrrl, , , and any other product or service name or slogan contained in the Site are trademarks of Pelago and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Pelago or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "Pelago" or any other name, trademark or product or service name of Pelago without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Pelago and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.

  9. Hyperlinks

    You are granted a limited, non-exclusive right to create a text hyperlink to the Site for noncommercial purposes, provided such link does not portray Pelago or any of its products and services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked at any time. You may not use a Pelago logo or other proprietary graphic of Pelago to link to this Site without the express written permission of Pelago. Pelago makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party Web sites accessible by hyperlink from the Site, or Web sites linking to the Site. Pelago provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption by Pelago of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.

  10. Third Party Content

    Pelago permits third parties to post content to the Site and may provide links to Web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. Pelago does not monitor or have any control over any Third Party Content or third party Web sites. Pelago does not represent or warrant the accuracy of any information contained therein and undertakes no responsibility to update or review any Third Party Content. Users use these links and Third Party Content contained therein at their own risk. Without limiting the foregoing, the neighborhood designations used or provided via the Site and the Whrrl Service are Third Party Content and are provided by Urban Mapping, Inc. and by Maponics, LLC, which provide such data to Pelago on an "as is basis" only.

  11. Advertisements and Promotions; Third Party Products and Services

    Pelago may run advertisements and promotions from third parties on the Site or may send you promotional offers or messages from third parties or regarding third party products and service through the Whrrl Service. Your business dealings or correspondence with, or participation in promotions of, advertisers other than Pelago, and any terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You acknowledge and agree that Pelago is not responsible or liable for any such dealings or third party products or service or for any loss or damage of any sort incurred as the result of such dealings, products or services or as the result of the presence of such non-Pelago advertisers or offers on the Site or through the Whrrl Service.

  12. User-Submitted Content

    You retain ownership of any message, comment, data, information, text, music, sound, photos, graphics or other material that you post to the Site or through the Whrrl Service ("Content"). If you post Content to the Site or through the Whrrl Service, unless we indicate otherwise, you grant Pelago and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content throughout the world in any media. You grant Pelago and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that (a) you own and control all of the rights to the Content that you post or you otherwise have the right to post such Content to the Site; (b) the Content is accurate and not misleading; and (c) use and posting of the Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.

  13. User Conduct

    You are solely responsible for your use of the Site and the Whrrl Service and any activities that occur under your account. Therefore, you should not share your password with anyone. You agree not to use the Site or the Whrrl Service for commercial purpose or for any illegal, unlawful, inappropriate or unauthorized purpose or activity. You further agree not to threaten, abuse, solicit, spam, harass, stalk, impersonate or intimidate other Pelago users and not to collect or store any location or other personal information about any Pelago users that you obtain from the Site.

    You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:

    1. Any Content that is unlawful, libelous, defamatory, obscene, pornographic, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;

    2. Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;

    3. Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any Content, you represent and warrant that you have the lawful right to distribute and reproduce such Content;

    4. Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;

    5. Content about another person, entity, business, event or other activity that is knowingly false or misleading;

    6. Unsolicited promotions, political campaigning, advertising or solicitations;

    7. Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;

    8. Viruses, corrupted data or other harmful, disruptive or destructive files; and

    9. Content that restricts or inhibits any other person from using the Site or the Whrrl Service, or which may expose Pelago or its users to any harm or liability of any type.

    Pelago takes no responsibility and assumes no liability for any user conduct or any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is Pelago liable for any mistakes, defamation, slander, libel, omissions, falsehoods, inaccuracies, obscenity, pornography or profanity you may encounter. YOUR USE OF THE SITE AND THE WHRRL SERVICE IS AT YOUR OWN RISK. PELAGO IS NOT LIABLE FOR ANY STATEMENTS, REPRESENTATIONS OR CONTENT PROVIDED BY ITS USERS ON THE SITE OR THE CONDUCT OF ITS USERS. Without limiting the foregoing, if you make location available to other users or you use the Whrrl Service to meet or make contact with other users or to attend offline events you learn about through the Whrrl Service, you acknowledge that such activities are undertaken at your own risk and you hereby release and hold Pelago harmless from any liability, loss, damages, injury or other or harm arising out of or in connection with such activities or your interaction with other users. Although Pelago has no control over your postings and has no obligation to screen, edit or monitor any of the Content posted on the Site, Pelago reserves the right, and has absolute discretion, to delete, edit or refuse to post any Content posted or stored on the Site at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any Content you post or store on the Site at your sole cost and expense. Any use of the Site in violation of the foregoing violates these Terms of Use and may result in, among other things, termination or suspension of your rights to use the Site. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Pelago's systems and customers, or to ensure the integrity and operation of Pelago's business and systems, Pelago may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information, user contact info, check-ins, IP addressing and traffic information, usage history, and posted Content. Pelago's right to disclose any such information shall govern over any terms of Pelago's Privacy Policy.

  14. Other Submissions

    You acknowledge and agree that any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, regarding the Site, the Whrrl Service, Pelago or Pelago's products or services that are provided by you in the form of email or other submissions to Pelago are non-confidential and shall become the sole property of Pelago. Pelago shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

  15. Registration Data; Account Security

    In consideration of your use of the Site and the Whrrl Service, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification and not sell, transfer or allow another person to access you account or account password; (c) maintain and promptly update the Registration Data, and any other information you provide to Pelago, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to Pelago.

  16. Indemnification

    You agree to defend, indemnify and hold harmless Pelago, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to your conduct in connection with the Site and the Whrrl Service or any Content you post, store or otherwise transmit on or through the Site or the Whrrl Service or your use of or inability to use the Site or the Whrrl Service, including without limitation any actual or threatened suit, demand or claim made against Pelago and/or its independent contractors, service providers, employees, directors or consultants, arising out of or relating to the Content, your conduct, your violation of these Terms of Use or your violation of the rights of any third party.

  17. Disclaimer

    THE SITE, THE SITE MATERIALS CONTAINED THEREIN AND THE WHRRL SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PELAGO DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT AND MATERIALS IN THE SITE. PELAGO DOES NOT REPRESENT OR WARRANT THAT INFORMATION OR MATERIALS IN THE SITE OR THE WHRRL SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. PELAGO DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT THE ANY LOCATION BASED INFORMATION IS INTENDED SOLELY FOR PERSONAL USE AND SHOULD NOT BE RELIED UPON IN EMERGENCIES.

    YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER PELAGO USERS. PELAGO IS NOT RESPONSIBLE FOR THE ACTIONS OF ANY THIRD PARTIES WHO MAY ACCESS THE SITE OR USE THE WHRRL SERVICE, AND YOUR USE OF THE SITE AND THE WHRRL SERVICE IS AT YOUR OWN RISK. PELAGO CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S) OR ANY MATERIALS THAT YOU MAY DOWN LOAD FROM THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.

    Pelago reserves the right to change or discontinue any and all content contained in the Site and the Whrrl Service at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Pelago. The Site and the Whrrl Service may be temporarily unavailable from time to time for maintenance or other reasons. Pelago assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Pelago is not responsible for any problems or technical malfunction of any telephone network or lines, mobile devices, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Whrrl Service. UNDER NO CIRCUMSTANCES WILL PELAGO BE RESPONSIBLE FOR ANY HARM, LOSS, INJURY, OR DAMAGE OF ANY KIND RESULTING FROM ANYONE'S USE OF THE SITE OR THE WHRRL SERVICE OR ANY INTERACTIONS BETWEEN USERS OF THE SITE OR THE WHRRL SERVICE, WHETHER ONLINE OR OFFLINE.

  18. Limitation of Liability

    IN NO EVENT SHALL PELAGO, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, THE WHRRL SERVICE, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CASED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM PELAGO, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PELAGO'S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PELAGO, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO PELAGO FOR ACCESS TO OR USE OF THE SITE OR THE WHRRL SERVICE.

  19. Applicable Law and Venue

    These Terms of Use and your use of the Site shall be governed by and construed in accordance with the laws of the State of Washington, applicable to agreements made and to be entirely performed within the State of Washington, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms of Use shall be filed only in the state and federal courts located in King County, Washington and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms of Use.

  20. Termination

    Notwithstanding any of these Terms of Use, Pelago reserves the right, without notice and in its sole discretion, to terminate your account and your license to use the Site, and to block or prevent future your access to and use of the Site and the Whrrl Service.

  21. Severability

    If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

  22. Questions & Contact Information

    Questions or comments about the Site may be directed to Pelago at the email address help@whrrl.com or by calling us at (206) 223-0660.

II. End User License Agreement (EULA)

PLEASE READ THIS EULA CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE PELAGO SOFTWARE. BY USING THIS SITE OR THE WHRRL SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA WITH RESPECT TO THE PELAGO SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONSENTS, DO NOT USE THE PELAGO SOFTWARE

  1. Software License.  Subject to the terms and conditions in this EULA, we grant you a non-exclusive, non-transferable license to install and use a copy of the Pelago Software in object code form only, solely for your personal, noncommercial use in connection with the Whrrl Service. Any software that updates, supplements or replaces the original Pelago Software is governed by this EULA unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this EULA or as otherwise provided in such separate terms.

  2. License Limitations.  The preceding states the entirety of your rights with respect to the Pelago Software, and we reserve all rights not expressly granted to you in this EULA. Without limiting the foregoing, you will not do, or authorize or permit any third party to do, any of the following: (a) license or sell the Pelago Software; (b) distribute the Pelago Software except as expressly authorized by Pelago; (b) use the Software for any purpose other than your personal, noncommercial use; (c) reverse engineer, decompile, disassemble or attempt to discover the source code for the Pelago Software; (d) modify, alter or create any derivative works of the Pelago Software; or (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Pelago Software.

  3. Ownership.  The Pelago Software is the valuable property of Pelago and its licensors and is protected by copyright and other intellectual property laws and treaties. We and our licensors own all right, title and interest in and to the Pelago Software, including all copyright and other intellectual property rights in the Software.

  4. Disclaimers.  THE PELAGO SOFTWARE IS PROVIDED TO YOU FREE OF CHARGE. ACCORDINGLY, THE SOFTWARE IS PROVIDED "AS IS," WITH ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT WARRANTY OF ANY KIND. PELAGO DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE SOFTWARE AND ITS PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, PELAGO DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS, AND PELAGO SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF OR INABILITY TO USE THE SOFTWARE, THE WHRRL SERVICE OR ANY OTHER PRODUCT OR SERVICE ASSOCIATED THEREWITH.

  5. Limitation of Liability.  IN NO EVENT WILL PELAGO OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITIES WHATSOEVER ARISING FROM OR RELATING TO THE SOFTWARE OR THIS EULA, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EVEN IF PELAGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  6. Termination.  Pelago may terminate this EULA and any user accounts opened in connection with your use of the Pelago Software at any time for any reason or for no reason immediately upon notice. Upon such termination, you agree not to download, copy, install or use the Pelago Software (including any subsequent version of the Pelago Software) or register for any new user accounts. Pelago may also discontinue the Whrrl service, in which case this EULA shall terminate automatically without notice. In the event of the termination of this EULA for any reason: (a) the license granted to you in this EULA will terminate; (b) you must immediately upon receiving any notice of termination cease all use of the Pelago Software and destroy or erase all copies of the Pelago Software in your possession or control; and (c) Sections 3 (Ownership), 4 (Disclaimers), 5 (Limitation of Liability), 6 (Termination), 7 (Governing Law; Jurisdiction) and 8 (General) will survive any such termination.

  7. Governing Law; Jurisdiction.  Unless expressly prohibited by local law, this EULA is governed by the laws of the State of Washington and the United States of America, without regard to any conflict of law principles to the contrary.

  8. General.  (a) Severability. If any provision of this EULA is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this EULA will remain in full force and effect. (b) Headings; Interpretation. The headings of sections and paragraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. (c) Assignment. You may not assign this Agreement or any of your rights under this EULA without the prior written consent of Pelago, and any attempted assignment without such consent shall be void. (d) Entire Agreement. This EULA sets forth our entire agreement with respect to the Pelago Software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral. No amendment, modification or waiver of any of the provisions of this EULA will be valid unless set forth in a written instrument signed by the party to be bound thereby.