TERMS OF SERVICE
Last Updated: 12/16/2016
THESE TERMS OF SERVICE ("TERMS") AFFECT YOUR LEGAL RIGHTS, SO PLEASE READ THEM CAREFULLY. NOTE THAT SECTION 17 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
These Terms apply to your access to and use of the mobile application ("App") and related online services (together with the App, the "Services") of Afero, Inc. ("Afero", "we", or "us"). By clicking "I accept" or by otherwise accessing or using the Services, you agree to be bound by these Terms and all terms incorporated by reference. These Terms do not alter in any way the terms or conditions of any other agreement you may have with us, our subsidiaries or affiliates, with respect to any other products, services, websites, or otherwise.
If you are using the Services 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 will refer to you and such entity, collectively.
By using the Services, you represent and warrant that you (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Services, 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.
3. Registration and Account
You will need to register for an Afero account in order to use the Services ("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 Services via your Account, including unauthorized access, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your Account.
5. Ownership; License
(a) Unless otherwise indicated, the Services, including all text, videos, images, data, software, or other files, content and materials contained therein, are the proprietary property of Afero or our licensors and are protected by U.S. and international copyright, trademark and other laws.
(b) The Services are licensed and not sold to you. Subject to these Terms, Afero grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (i) install and use the App on a device you own or control for your own personal use; and (ii) access and use the Services for your own personal use.
(c) Except as expressly authorized by these Terms or by Afero in writing, you will not: (i) use the Services for any commercial purpose; (ii) permit any third party to access the Services via your Account other than your authorized agents; (iii) remove or alter any copyright, trademark, service mark or other proprietary notices on the Services; (iv) reverse engineer, decompile, disassemble, or attempt to discover any source code or trade secrets related to the Services or any proprietary materials of Afero; (v) modify, copy, publicly perform, publicly display, sell, lease, or otherwise distribute (including by making available via a network) the Services, in whole or in part; (vi) work around any technical limitations in the Services; or (vii) otherwise use the Services other than for their intended purposes.
(d) These Terms will govern any updates provided by Afero that replace or supplement the App, unless an update is accompanied by a separate license, in which case the terms of that separate license will govern and the license granted to you in connection with the previous version of the App will immediately terminate. You authorize us to provide automatic updates for the App to your device.
(e) 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.
"Afero", the Afero logo, any other Afero service names, logos or slogans that may appear on the Services, and the look and feel of the Services, 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.
7. Third-Party Devices, Content and Software
(a) Third-Party Devices. The Services may allow you to control or interact with third-party devices that contain Afero technology or are otherwise designed to communicate with the Services ("Third-Party Device"). We make no representation or warranty regarding Third-Party Devices, and we are not responsible or liable for Third-Party Devices, including for any personal injury, death, property damage or other damages or losses arising from your use of a Third-Party Device. You will comply with any third-party terms and conditions applicable to Third-Party Devices. In order to communicate with a Third-Party Device via the App, the Third-Party Device and the device that you use to access our App must be (i) close enough to facilitate a Bluetooth connection, and (ii) connected to the Internet through a connection that you maintain at your sole cost.
(b) Third-Party Content. We may display third-party content, advertisements, links, promotions, logos and other materials through the Services (collectively, "Third-Party Content"). We do not control, endorse, sponsor or adopt any Third-Party Content or the third parties responsible for that 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 the Third-Party Content, are solely between you and such third party, and Afero is not responsible or liable in any manner for such interactions or Third-Party Content.
(c) Third-Party Software. The Services include third-party software that may be subject to additional license terms. You will comply with
all applicable third-party terms and conditions applicable to your use of such third-party software.
8. User Conduct
You agree that you (a) will comply with all applicable laws in connection with your access and use of the Services, and (b) are solely responsible for your conduct, and any of your user's conduct, while accessing or using the Services. You further agree that you and your users will not:
You may submit questions, comments, suggestions, ideas, original or creative materials or other information about Afero or the Services to us (collectively, "Feedback"). Feedback is non-confidential and you hereby assign all right, title and interest in Feedback to 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 notice, acknowledgment or compensation to you.
10. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE 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, 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 SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES 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.
11. Assumption of Risk
You acknowledge and agree that the Services may not be reliable or available at all times, and that you will not use the Services in circumstances where the failure or malfunction of the Services (or improper use of the Services) could result in personal injury, death, or property damage. To the fullest extent permitted by applicable law, you assume all risks in connection with your use of the Services or any Third-Party Devices.
(a) To the fullest extent permitted by applicable law, you will 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 of the Services; (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 or their 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.
13. Limitation of Liability
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 SERVICES 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, 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 SERVICES, INCLUDING MATERIALS AND FUNCTIONS CONTAINED THEREIN, EXCEED THE GREATER OF (I) ANY COMPENSATION YOU PAY TO US FOR ACCESS TO OR USE OF THE SERVICES; 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.
14. Modifications to the Services
To the fullest extent permitted by applicable law, we reserve the right in our sole discretion to modify, suspend or stop providing the Services (or any features or functionality of the Services), or your access and use of the Services, at any time without notice and without obligation or liability to you.
15. Legal Compliance; No Export
(a) You may not use or otherwise export or re-export the App or any content contained therein, except as authorized by United States law and the laws of the jurisdiction in which the App or any content was obtained. In particular, but without limitation, you will not export the App and the content contained therein to (i) any U.S. embargoed countries; or (ii) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List.
(b) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
16. Commercial Items
If acquired by any agency of the U.S. Government, such agency acknowledges that (a) the App constitutes "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable; and (b) such agency's rights are limited to those specifically granted under these Terms.
17. 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.
17.1. 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' respective rights to have any and all Disputes arising from or related to these Terms or the Services, resolved in a court, and (b) to waive your and Afero' 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).
17.2. 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 Services 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.
17.3. Federal Arbitration Act
You and Afero agree that these Terms affect interstate commerce and that the enforceability of this Section 17 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.
17.4. 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 firstname.lastname@example.org. 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 17, commence an arbitration proceeding or, to the extent specifically provided for in Section 17.1, 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.
17.6. 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.
17.7. 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 17 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 17 will remain valid and enforceable. Further, the waivers set forth in Section 17.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
17.9. 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 17 by writing to: email@example.com. 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 18.
18. Governing Law and Venue
These Terms and your access to and use of the Services 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 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.
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 App and updating the "Last Updated" date at the top of these Terms. Your continued use of the Services will confirm your acceptance of the revised Terms. If you do not agree to the modified Terms, you must stop using the Services.
(a) Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services, and to block or prevent your future access to and use of the Services. You may terminate these Terms at any time by discontinuing use of the Services and deleting all copies of the App from your device.
(b) Sections 5(a), 6, 9, 10, 11, 12, 13, 17, 18, 20(c) and 21 will survive any termination of these Terms.
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.
If you have any questions or concerns regarding the Services or these Terms, please contact Afero at:
4970 W. El Camino Real, Suite 100
Los Altos, CA 94022
23. Additional Terms for iOS users. The following terms apply if you are accessing or using the App on an Apple Inc. ("Apple") branded mobile device:
a. Acknowledgement. The Terms are concluded between Afero and you only, and not with Apple and, subject to Section 13 of the Terms, we are solely responsible for the App and the content thereof.
b. Scope of License. The license granted to you for the App under Section 5(b) of the Terms is limited to a non-transferable license to use the App on any Apple-branded products that you own or control and as permitted by the Apple Usage Rules set forth in the App Store Terms of Service, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via "Family Sharing" or volume purchasing.
c. Maintenance. Afero is not obligated to provide any support or maintenance services for the App, provided that we are solely responsible for any such services to the extent required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
d. Warranty. To the extent not effectively disclaimed under Section 10 of the Terms, we are solely responsible for any warranties, whether express or implied by law in connection with the App. In the event of any failure of the App to conform to any applicable warranty not effectively disclaimed under Section 10, you may notify Apple, and Apple will refund the purchase price for the App that you paid (if any); and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
e. Liability. Subject to Section 13 of the Terms, we, and not Apple, are responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
f. IP Claims. Subject to Section 13 of the Terms, in the event of any third party claim that the App or your possession and use of that App infringes any third party's intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
g. Third Party Beneficiaries. Apple and its subsidiaries are third party beneficiaries of these Terms, and will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.