TERMS OF SERVICE
Last Updated: 12/16/2016
If you have any questions regarding these Terms, please contact us at firstname.lastname@example.org.
If you are using the Site on behalf of any entity: (a) you represent and warrant that you are authorized to accept these Terms on such entity's behalf and that such entity will be responsible for breach of these Terms by you or any other employee or agent of such entity; and (b) references to "you" in these Terms refer to you and such entity, collectively.
You represent and warrant that you (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Site, and (c) have full power and authority to enter into these Terms and that in so doing, will not violate any other agreement to which you are a party.
4. Registration and Account
In order to access and use certain areas or features of the Site, such as the Afero developer forum, you will need to register for an Afero account ("Account"). When registering for an Account, you cannot create an Account name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim Account names on behalf of any business or individual that holds legal claim, including trademark rights, in those names. If you create an Account, you agree to (a) provide accurate, current and complete Account information, (b) maintain and promptly update from time to time as necessary your Account information, (c) maintain the security of your password, (d) be solely responsible for all access and use of the Site via your Account, including unauthorized access, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Site or your Account.
5. Licenses to Use the Site
(a) Unless otherwise indicated, the Site, including all text, videos, images, data, software, or other files, content and materials contained on the Site, is the proprietary property of Afero or our licensors and is protected by U.S. and international copyright, trademark and other laws.
(b) Subject to these Terms, Afero grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Site for your own personal use; provided, that you agree not to: (i) permit any third party to access the Site via your Account other than your authorized agents; (ii) remove or alter any copyright, trademark, service mark or other proprietary notices on the Site; (iii), modify, copy, distribute, use, perform, display, publish, or distribute the Site, in whole or in part; or (iv) otherwise use the Site other than for its intended purposes.
(c) Except as specified in these Terms, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Afero or any third party, whether by estoppel, implication or otherwise.
6. Repeat Infringer Policy; Copyright Complaints
(a) In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Site by, or terminating the Accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Site infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: Copyright Agent
Address: 4970 El Camino Real, Suite 100, Los Altos, CA 94022
Phone: (650) 899-0092
(b) Please see 17 U.S.C. § 512(c)(3) [http://www.copyright.gov/title17/92chap5.html#512] for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorney's fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
(a) "Afero," the Afero logo, any other Afero service names, logos or slogans that may appear on the Site, and the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, are trademarks, service marks or trade dress of Afero and our suppliers and our licensors, and may not be copied, imitated or used, in whole or in part, without our or the applicable trademark holder's prior written permission. You may not use any metatags or other "hidden text" utilizing "Afero" or any other name, trademark or product or service name of Afero without our prior written permission.
(b) If you believe that anything on the Site infringes upon any trademarks which you own or control, you may file a notification of such infringement with our designated agent as set forth in Section 6. A proper notification should contain the same element required for copyright complaints (please see 17 U.S.C. § 512(c)(3) [http://www.copyright.gov/title17/92chap5.html#512]).
We grant you a limited, nonexclusive, nontransferable, revocable right to create a text hyperlink to the Site, provided that such link does not portray Afero or our Site in a false, misleading, derogatory or otherwise defamatory manner, and that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. You may not use an Afero logo, trademark or other proprietary graphic of Afero to link to the Site without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Afero trademark, logo or other proprietary information, including the images found on the Site, the content of any text or the layout or design of any page, or form contained on a page, on the Site without our express written consent.
9. Third Party Content
We may display third-party content, advertisements, links, promotions, logos and other materials through the Site (collectively, " Third-Party Content"). We do not control, endorse, sponsor or adopt any third parties referenced on the Site or Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding its accuracy or completeness. Your interactions with Third-Party Content, and any third party that provides Third-Party Content, are solely between you and such third parties, and Afero is not responsible or liable in any manner for such interactions or Third-Party Content. When you leave the Site and enter a third-party site or service, our terms and policies no longer govern.
10. User Conduct
You agree that (a) you will comply with all applicable laws in connection with your access and use of the Site, and (b) you are solely responsible for your conduct, and any of your authorized user's conduct, while accessing or using the Site. You further agree that you and your authorized users will not:
11. User Content
(a) The Site may include interactive features and areas that allow users to create, post, upload, share or store content, including, but not limited to, reviews, photos, videos, music, sound, text, graphics, code, items or other information and materials (collectively, "User Content").
(b) You are solely responsible for any of your User Content and for your use of any interactive features and areas of the Site, and you represent and warrant that (i) you own all intellectual property rights (or have obtained all necessary permissions) to provide your User Content and to grant the licenses set forth herein; (ii) your User Content will not violate any agreements or confidentiality obligations; and (iii) your User Content will not violate, infringe or misappropriate any intellectual property right or other proprietary right, including the right of publicity or privacy, of any person or entity.
(c) By using the interactive features and areas of the Site, you further agree not to create, post, share or store User Content that:
(d) We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Site at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.
12. Rights in User Content
You grant Afero a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and fully sublicenseable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display your User Content on the Site, our other online services, on third-party sites and online services, and in all other media or formats, whether now known or hereafter developed, for any purpose.
You may submit questions, comments, suggestions, ideas, original or creative materials or other information about Afero or the Site to us (collectively, " Feedback"). Feedback is non-confidential and shall become the sole property of Afero. Afero shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
(a) To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Afero and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the "Afero Parties") from all Afero Party or third party claims of any kind, whether in tort, contract or otherwise (collectively, "Claims"), including damages to property or personal injury, that arise from or relate to: (i) your access to or use or misuse of our Site, including any of your User Content; (ii) any Feedback you provide; or (iii) your violation of these Terms.
(b) This indemnity obligation includes paying for Afero's attorneys' fees and other costs of investigating and defending Claims, and the costs of enforcing the indemnity obligation.
(c) You agree that the Afero Parties may, in its discretion, elect to control the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Afero.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AND WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT AFERO KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), TITLE AND NON-INFRINGEMENT. WE DO NOT REPRESENT OR WARRANT THAT THE SITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, MEETS YOUR REQUIREMENTS, OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SITE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY AFERO OR OUR AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
16. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL AFERO OR ANY OF THE AFERO PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITE OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM AFERO, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, 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 AFERO'S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE); AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AFERO AND THE AFERO PARTIES (JOINTLY), 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 OR INABILITY TO USE THE SITE, INCLUDING MATERIALS AND FUNCTIONS CONTAINED THEREIN, EXCEED THE GREATER OF (I) ANY COMPENSATION YOU PAY TO US FOR ACCESS TO OR USE OF THE SITE; OR (II) $100 USD.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
17. Modifications to the Site
We reserve the right in our sole discretion to modify, suspend or stop providing access to the Site (or any features or functionality of the Site) at any time without notice and without obligation or liability to you.
18. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH AFERO AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
18.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, "Disputes") in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Afero agree (a) to waive your and Afero's respective rights to have any and all Disputes arising from or related to these Terms or the Site, resolved in a court, and (b) to waive your and Afero's respective rights to a jury trial. Instead, you and Afero agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
18.2. No Class Arbitrations, Class Actions or Representative Actions
You and Afero agree that any Dispute arising out of or related to these Terms or the Site is personal to you and Afero and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Afero agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Afero agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
18.3. Federal Arbitration Act
You and Afero agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA"), to the maximum extent permitted by applicable law.
18.4. Notice; Informal Dispute Resolution
You and Afero agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Afero shall be sent electronically to email@example.com. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically to the email address you provided at registration and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Afero cannot agree how to resolve the Dispute within thirty (30) days, then either you or Afero may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
Except for Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Afero agree that (a) any arbitration will occur in Santa Clara County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Site ("JAMS"), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County, California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
18.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
18.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website [http://www.jamsadr.com]. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
18.9. Opt-Out Right. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by writing to: firstname.lastname@example.org. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 19.
19. Governing Law and Venue
These Terms and your access to and use of the Site shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County, California.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access, use or link to the Site, and to block or prevent your future access or link to and use of the Site. All rights and licenses granted to you under these Terms will immediately be revoked upon our termination of these Terms or your access to the Site.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
We reserve the right to change these Terms from time to time in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by posting the revised Terms to the Site and updating the "Last Updated" date at the top of these Terms. Your continued use of the Site will confirm your acceptance of the revised Terms. If you do not agree to the modified Terms, you must stop using the Site
The following sections will survive the expiration or termination of these Terms: all defined terms and Sections 12, 13, 14, 15, 16, 18, 19, 21, and 23.