Terms of Subscription Services
Dated: September, 2018
IMPORTANT-READ CAREFULLY: These Terms of Subscription Services (the “Agreement”) is a legal agreement between you and Angee, Inc., a Delaware corporation (“Angee,” “we,” “us,” or “our”). The term “you” or “your” as used in this Agreement, means any person or entity who accesses or uses our Products and Services including any person granted access to the Products and Services by you, and any person or entity who creates an account and accepts this Agreement. In this Agreement, the following capitalized terms have the following meanings:
“Products” means the Angee hardware products you have selected to receive with your Subscription Services provided without a separate charge;
“Product Software” means the software embedded in the Product (and any updates thereto);
“Services” mean our online software services you have selected to receive on a subscription basis provided through our website located at www.meetangee.com (the “Website”) or any application that may be downloaded to your smartphone or tablet to access services (an “App”) for use in conjunction with the Products (and any updates thereto);
“Sites” means our Website and App collectively, and “Site” mean either the Website or App;
“Subscription Services” means the Products and the Services you have ordered on a subscription basis through a Site.
Please read these terms carefully as this Agreement governs your access to, and use of, our Products and Services and your Subscription Services. THIS AGREEMENT CONTAINS IMPORTANT DISCLAIMERS, LIMITATIONS OF LIABILITY AND IN SECTION 4.7, YOUR INDEMNITY OBLIGATION. THIS AGREEMENT ALSO REQUIRES THE USE OF BINDING ARBITRATION TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR GROUP/CLASS ACTIONS AS DESCRIBED IN SECTION 11 BELOW. Please follow the instructions in the Dispute Resolution and Arbitration Section 11 below if you wish to opt out of this provision. This Agreement gives you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, limitations of liability, indemnification, arbitration and your waivers under this Agreement will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this Agreement may not apply to you.
THIS AGREEMENT IS A LEGAL AGREEMENT. BY CLICKING THE “SUBMIT” BUTTON OR BY ACCESSING AND USING ANY OF OUR PRODUCTS AND SERVICES, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND ARE ACCEPTING AND AGREEING TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, YOU SHOULD NOT SUBSCRIBE TO OUR PRODUCTS AND SERVICES.
IMPORTANT LIFE SAFETY NOTICE. YOU ACKNOWLEDGE THAT THE PRODUCTS AND SERVICES ARE NOT DESIGNED FOR, SOLD FOR, OR CERTIFIED FOR EMERGENCY RESPONSE. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM, A 911 SERVICE, OR A LIFESAVING SOLUTION FOR PEOPLE AT RISK IN THEIR HOME OR OTHERWISE. ANGEE DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME OR OFFICE IN THE EVENT OF AN EMERGENCY. IN ADDITION, THE PRODUCTS AND SERVICES CANNOT BE CONSIDERED A LIFESAVING SOLUTION FOR PEOPLE AT RISK IN THE HOME, AND THEY ARE NO SUBSTITUTE FOR EMERGENCY SERVICES. ALL LIFE THREATENING AND EMERGENCY EVENTS SHOULD BE DIRECTED TO THE APPROPRIATE RESPONSE SERVICES.
1. Governing Agreements, Eligibility, Your Account and Customer Service
1.1 Governing Agreements. This Agreement governs your use of the Products, Services and Product Software. By using our Products, Services and Product Software, you are also accepting and agreeing to be bound by:
- Any additional terms and conditions as posted on a Site related to the Products or Services including our Terms of Ordering which govern your placement of an order for our Products and Services (the “Terms of Ordering”).
1.2 Eligibility. Our Products and Services are offered and available only to users who are 18 years of age or older who reside in the United States. You represent and warrant that you are of legal age and have the capacity and authority to agree to this Agreement and that you reside in the United States. You agree that all authorized users you permit to use and access the Products and Services between 13 and 18 years of age will only use the Products and Services under the supervision of a parent or legal guardian who agrees to be bound by this Agreement on such user’s behalf. Any use or access to the Products and Services by individuals under the age of 13 (or the equivalent minimum age in the jurisdiction where you reside) is strictly prohibited and is a violation of this Agreement. We are not liable for any loss or damage arising from your failure to comply with the above requirements. If you do not meet these requirements, please do not use our Products and Services. We disclaim all liability for use of our Products and Services outside of the United States which is at your sole risk. All users you authorize to use the Products and Services are referred to in this Agreement as “Authorized Users.”
1.4 Customer Service. If you contact our customer service, you hereby consent to the means by which such contact was initiated. You similarly consent to us contacting you through any of the means that we make available utilizing the contact information identified in your Account. PLEASE DO NOT CONTACT CUSTOMER SERVICE OFFERED BY US WITH ANY LIFE/SAFETY EMERGENCY, MEDICAL EMERGENCY, OR ANY OTHER EMERGENCY. IF YOU HAVE ANY SUCH EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, 911 OR APPROPRIATE EMERGENCY RESPONSE SERVICE.
2. Term and Termination.
2.1 Term. This Agreement will remain in full force and effect until you cancel your Subscription Services with us as set forth in Section 3 below or we terminate this Agreement for any reason or no reason following notice to you by e-mail sent to the email address on file with us for your Account. Termination shall be effective when we send the e-mail notice. We reserve the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof. Your sole remedy will be to cancel the Services in accordance with Section 3.
2.2 Effect of Termination. Upon termination of this Agreement, your Account and your right to use the Subscription Services will automatically terminate. Upon termination of the Agreement, we shall have no further obligation to you and you shall have no further obligation to us other than (a) the obligation respecting the payment of any monies due to us for Subscription Services rendered; and (b) your obligation to return Products to us as set forth in Section 3.2. Additionally, Sections 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 16 shall survive the termination of this Agreement.
3. Cancellation/No Refunds; Requirement to Return Product.
3.1 Cancellation/No Refunds. You may cancel your Subscription Services at any time, and you will continue to have access to the Services until the end of your then-current subscription billing period and your Subscription Services will not be renewed thereafter. WE DO NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION BILLING PERIODS UNLESS SPECIFICALLY AUTHORIZED IN OUR SOLE DISCRETION. If you cancel your Subscription Services, your account will automatically close at the end of your current subscription billing period. To cancel, go to the “Your Account” link on our Site or within our Services and follow the instructions for cancellation.
3.2 Return of Product. Because our Products are provided as part of the Subscription Services, you are responsible, upon receipt of the Products in good condition and repair, for all loss and damage to the Products included in your Subscription Services until such Products have been returned to us, regardless of fault. At the end of your Subscription Services or the termination of this Agreement for any reason, you are responsible and agree to promptly return the Products to us within thirty (30) days at your cost in their original condition, reasonable wear and tear excepted. You agree to pay the full retail cost for any Products that are lost, stolen, unreturned, damaged, modified, sold, transferred, leased, encumbered or assigned, together with any costs incurred by us in obtaining or attempting to obtain possession of any Products. If you fail to return all Products during such thirty (30) day period in their original condition, reasonable wear and tear excepted, you will be charged and incur a non-return fee of $349.00 per Product in addition to other applicable charges. YOU AGREE THAT IF YOU FAIL TO RETURN THE PRODUCTS IN GOOD CONDITION, YOU WILL INCUR A NON-RETURN FEE OF $349.00 PER PRODUCT AND YOU HEREBY AUTHORIZE US TO CHARGE TO YOUR PAYMENT METHOD OR OTHERWISE COLLECT FROM YOU SUCH AMOUNT AND YOU AGREE TO PAY SUCH AMOUNT.
4. Access and Use of our Products and Services
4.1 Right to Access and Use. In consideration of the Subscription Fees set forth in Section 5, and subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, revocable, nontransferable and non-sublicensable right to (a) access and use the Products you receive from us based on your selected Subscription Services; (b) access and use our Services for use in conjunction with such Products; (c) grant you a license to use the Product Software in connection with the Products; and (d) to the extent we offer an App, install and use any App on your own handheld mobile device, solely in each case, for your personal, non-commercial and household use. You consent to our posting alarm events and other status reports in connection with the Products and Services in your Account or otherwise through our Services and you assume the risk that unauthorized persons may gain access to the Services and data thereon. We will provide you the Products without additional charge subject to the terms set forth in Section 6.
4.2 Use Restrictions. The rights granted to you in this Agreement are subject to the following use restrictions: You agree not to, and you will not permit others to (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product, Services or Product Software; (b) copy or use the Product, Services or Product Software for any purpose other than as permitted in Section 4.1 (Right to Access and Use); (c) disclose or make available to third parties any portion of the technology associated with the Products, Services or Product Software without our prior written consent; (d) copy, decompile, dissemble, reverse engineer, manipulate, modify, or make derivative works of any technology incorporated in the Product, Services or Product Software; (e) upload, transmit or distribute any computer viruses, worms or any software to the Service intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, the Products, the Product Software or any other system, device or property; (f) not to interfere with, disrupt or attempt to gain unauthorised access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (g) use the Services except with the Products you receive from us; and (h) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product, Services or Product Software.
4.3 Updates. Any upgrades and other modifications we may create to improve the performance of the Services and/or the Product (“Updates”) may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Subscription Services in accordance with Section 3 and stop using the Products and Services. If you do not terminate your Services, you will receive Updates automatically. Updates may be required to use the Services and the Products and you agree to install any Updates provided to you. IF YOU FAIL TO INSTALL ANY UPDATES PROVIDED BY US, ACCESS TO THE SERVICES MAY BE TERMINATED AND THE PRODUCTS WILL NOT FUNCTION.
4.4 System Requirements. Use of the Products and Services is conditioned on you obtaining and maintaining access to the internet, computers, mobile devices, connections, and all equipment necessary for proper operation of the Products and Services as set forth in Section 7.4 below.
4.5 Compliance with Agreement and Laws. You agree to abide by this Agreement and all applicable laws in connection with your use of the Products and Services. Any use of the Products or Services in violation of the foregoing shall be a material breach of this Agreement.
4.6 End User Data. You will be solely responsible for providing all end user data required for the proper operation of the Product and Services. “End User Data” shall mean any data, information, or material submitted or provided to us through your use of the Products, Services, or Product Software and you shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership or right to use of all End User Data. We are under no obligation to review End User Data for accuracy, acceptability or potential liability. You grant to us all necessary licenses in and to such End User Data solely as necessary for us to provide the Subscription Services to you.
4.7 Your Indemnity Obligation. You agree to indemnify, defend, release and hold us and our licensors and suppliers harmless from and against any and all losses, liabilities, damages, costs and expenses, including but not limited to reasonable attorneys’ and experts’ fees, arising from any claim, suit, demand, or other legal action relating to or alleged to relate to (a) your or any Authorized Users use or misuse of the Products or Services; (b) your or any Authorized Users violation of this Agreement; (c) the violation of the rights of any third party by either you, your Authorized Users or any other third party, in connection with using the Products or Services; or (d) your or any Authorized Users violation of any law in connection with the use of the Products or Services. You understand and agree that the foregoing indemnification obligation applies even if any such legal action or losses arise from the negligence, breach of contract or warranty, strict liability, non-compliance with applicable law, or other fault or wrongdoing of us or our licensors or suppliers excluding intentional or reckless misconduct, or as limited or prohibited by applicable law. A “third party” includes all third parties such as a family member, guest, visitor, neighbor, tenant, or employee. We reserve the right to assume the control of the defense of any such indemnification claim and you agree to cooperate with us in our defense of any such claim. We reserve the sole right to settle or otherwise compromise any such claim, action or demand that is subject to indemnification under this Agreement with or without your consent.
5. Payment for Subscription Services
5.1 Subscribing. To subscribe to our Products and Services, you must enter into a subscription plan with us through a Site and provide us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) and other additional information as prompted. By providing a Payment Method, you authorize us to use the designated Payment Method and you authorize us or our third-party payment processor to charge your Payment Method for the applicable periodic subscription fees (the “Subscription Fees”) associated with your selected subscription plan (including any applicable taxes, shipping, handling, expedited service and other applicable charges). You can change your Payment Method at any time by logging into Your Account and editing your payment information.
5.2 Recurring Billing. You expressly acknowledge and agree that (a) we are authorized to charge you monthly, quarterly or annual Subscription Fees in advance of service on the billing cycle and subscription plan you choose for as long as your subscription continues including the shipping and handling method/charges you select, and sales and use taxes as applicable, and (b) your subscription is continuous until you cancel it as set forth in Section 3 or such Subscription Services is suspended, discontinued or terminated in accordance with this Agreement. You acknowledge that the recurring amount billed may vary for reasons such as you changing your subscription plan, purchasing additional Products or Services or changes in applicable taxes. If you do not pay any charges when due, we may, in our sole discretion, terminate and/or discontinue Subscription Services without notice.
6. Product Terms and Conditions
6.1 Products. For the Subscription Fees, we shall provide and deliver to you at our costs the Products associated with your selected Services as part of the Subscription Services. During the Subscription Services, we provide our Limited Product Service Warranty in Section 6.4 below. At the end of your Subscription Services, you are required to return the Products to us as set forth in Section 3.2. Failure to return the Products to us will result in your being charged US$ 349.00 as set forth in Section 3.2 above.
6.2 Ownership. We retain ownership and title of the Products. You will at all times protect and defend, at your own cost and expense, our ownership against all claims, liens and legal processes of your creditors and other persons, and keep the Products included in your subscription free and clear from all such claims, liens and processes.
6.3 Authorized Use and Prohibition on Tampering. Except for visiting our Sites using an industry standard browser, you and Authorized Users may not connect to the Services with any device that is not a Product provided by us. You agree the Products will be used only for receiving the Services. You will use Products only in connection with the Services as expressly authorized by us. You agree that you will not, and you will not permit others including Authorized Users to, rearrange, disconnect, remove, relocate, repair, alter, tamper or otherwise interfere with any Products including any Product Software or firmware. Such prohibition includes attaching any unauthorized devices to Products or altering identifying information such as serial numbers or logos. Any violation or attempted violation of this provision may result in the immediate termination of this Agreement and your Subscription Services.
6.4 Limited Product Service Warranty During your Subscription Services.
6.4.1 Limited Product Service Warranty. So long as you are using the Products and our Services pursuant to a subscription plan and are current in your Subscription Fees (the “Warranty Period”), we warrant the Products will be free from defects in material and workmanship from and after the date such Products are shipped to you when utilized for their normal and intended use. The warranties offered herein are non-transferrable and apply only to the original end user who has a current and valid subscription agreement with us, and may not be sold, assigned or transferred to any third-party.
6.4.2 Warranty Coverage. In the event of a defect in Products during the applicable Warranty Period (excluding battery replacement which you are responsible), we will repair Products at our cost using new or refurbished parts, or if we cannot repair the Products to normal working condition, we will replace them with Products of our choice of equal value. To obtain repair or a replacement, you must:
(a) during the applicable Warranty Period, promptly submit to information regarding the problem with your Product either online through a Site or by calling us at the phone number on our Website;
(b) upon submission, we will contact you through the email address we have in file for you and provide you with a Return Material Authorization (”RMA”);
(c) once an RMA has been issued to you, you have thirty (30) days the “RMA Period”) to return the Product to us for warranty service, shipping and insurance prepaid by you. You assume all risk of loss or damage to Products while in transit back to us and we recommend that you purchase sufficient insurance from your return shipper to cover the entire loss of Products being shipped back to us. Alternatively, if we agree in our sole discretion, in lieu of an RMA, we will pick up the defective Product from you at our cost provided that you make the Product available for pickup as we designate;
(d) upon receipt by us of the defective Product, whether as returned from you or picked up by us, we will repair or replace the Product within a reasonable period of time. We will return the repaired or replaced Product to you, shipping and insurance prepaid by us, but subject to any applicable taxes and fees;
(e) Replaced Products shall be similarly covered for the remaining Warranty Period; and
(f) You will not be charged Subscription Fees until we have returned the repaired or replaced Product to you.
6.4.3 Warranty Exclusions. The limited warranty set forth above does not apply to, and we have no obligation to repair or replace, defects in Products which result, in whole or in part, from: (a) misuse, neglect, accident, abuse, damage, theft, vandalism; (b) software, viruses, trojans, malware, and similar items; (c) alterations, adjustments or repairs not made or authorized by us (including modifications or replacements of any software components supplied with or embedded in the Products not made by us); (d) use outside of the normal and intended use; (e) unusual physical or electrical stress; (f) failure to provide and maintain a suitable installation environment; or (g) or any other causes not arising directly out of defects in material or workmanship including acts of God. Under any of the foregoing conditions, we have no obligation to repair or replace the Products and you shall be responsible to us for the cost to repair or replace such Products and you hereby authorize us to charge to your Payment Method, an amount equal to the current list price for a total loss of Products which is currently US $349.00.
6.4.4 THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF OUR LIMITED PRODUCT SERVICE WARRANTY. This warranty gives you specific legal rights and you may also have other rights that may vary from state to state or by jurisdiction.
6.5 Return of Products. At the end of your Subscription Services or the termination of this Agreement for any reason, you shall promptly return the Products to us within thirty (30) days at your cost in their original condition, reasonable wear and tear excepted, in accordance with Section 3.2.
6.6 Other. You will not use the Products included in your Subscription Services if any are damaged or in need of repair and will promptly return them to use in accordance with Section 6.3. You shall not make any alterations, additions or improvements to the Products included in your subscription without our prior written consent.
7. Limitations on the Use of our Products and Services
7.1 No Life Safety or Critical Uses of the Products and Services. YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCTS AND SERVICES ARE NOT (A) CERTIFIED FOR EMERGENCY RESPONSE AND (B) ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. FURTHER, YOU UNDERSTAND THAT WE DO NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME OR OFFICE IN THE EVENT OF AN EMERGENCY. In addition, the Products and Services cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
7.2 Reliability of Services. You acknowledge that the Products and Services, including remote access and any notifications, are not error-free or 100% reliable or 100% available. Proper functioning of the Products and Services relies and is dependent on, among other things, the transmission of data through your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional cellular service, for which neither we nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and events of disaster or emergency (collectively, “Service Interruptions”). You understand that Service Interruptions may result in the Products and Services being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee that you will receive notifications within any given time, or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE PRODUCTS OR SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR PRODUCTS AND SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY-NOTIFICATION SYSTEM.
7.3 Service Interruptions; no refund or rebate. The Services may be suspended temporarily, without notice, for Service Interruptions, security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. No specific uptime guarantee for the Products or Services is provided.
7.4 System Requirements. The Products and Services will not be accessible without: (a) a working Wi-Fi network in the premises where the Services are intended to be used by you that is positioned to communicate reliably with the Products; (b) Subscription Services and an Account; (c) an enabled and supported wireless device, such as a phone or tablet if required for some features and functionalities of the Services; (d) always-on broadband Internet access in the premises where the Services are intended to be used with bandwidth sufficient to support the Products you use; and (e) other system elements that may be specified by us. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Products and Services.
7.5 Installation, test and use. It is your responsibility to install, test and use the Products and Services pursuant to the applicable manual and instructions. IF A PRODUCT IS NOT PROPERLY INSTALLED, OR IF A PRODUCT OR ANY OF ITS SENSORS ARE OUTSIDE THE DETECTION RANGE OR HINDERED OR OBSTRUCTED BY WALLS, FURNITURE, PERSONAL PROPERTY OR OTHER THINGS, THE SERVICES MAY NOT FUNCTION PROPERLY. It is your responsibility to test the Products once installed to be sure the Products (and any related sensors, components and peripherals) are functioning and communicating as intended and designed, and then regularly test and maintain the Products after installation. It is your responsibility to replace any batteries for the Products, when necessary. YOU UNDERSTAND AND AGREE THAT THE PRODUCTS MAY NOT FUNCTION OR PROPERLY FUNCTION IF BATTERIES NEED REPLACEMENT; PLEASE CHECK THEM REGULARLY.
7.6 Authorized Users. We are not responsible for any Authorized User’s or other third party’s actions or behavior with respect to the Products or Services or for any personal injury, death, property damage (including, without limitation, to your home or other premises), or other harm or losses arising from or relating to their use of the Products and Services subject to your Subscription Services.
7.7 Limitations of Services Due to Third Parties. Our Products and Services rely on or inter-operate with third-party products and services. These third-party products and services are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Products and Services. These third party products and services include but are not limited to your computer, mobile device, home wiring, home Wi-Fi network and other related wiring and equipment, your Internet service provider and your mobile device operator. You acknowledge and agree that: (a) the use and availability of the Products and Services is dependent on the above and other third-party product vendors and service providers; (b) these third-party products and services may not operate in a reliable manner 100% of the time and may impact the way that the Products and Services operate; and (c) we are not responsible for damages and losses due to the operation of these third-party products and services. YOU AGREE NOT TO RELY ON THE PRODUCTS AND SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS SUCH THIRD-PARTY PRODUCT AND SERVICE PROVIDERS FROM ALL LIABILITY, DAMAGES OR LOSSES OF ANY KIND OR SORT, PERSONAL INJURY OR LOSS OF LIFE ARISING FROM YOUR USE OF THE PRODUCTS AND SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE ANY STATE STATUTORY PROVISION IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOUR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
8. Title to Intellectual Property
8.1 Ownership. The Products, Services and Products Software shall at all times remain owned by us and/or our suppliers and licensors. This Agreement does not transfer ownership of any Products, Services and Products Software used by you in your Subscription Services. You hereby acknowledge that all right, title and interest in and to the Products, Services and Products Software and all intellectual property rights therein, including software, patent, unpatented inventions, copyright, trademark, trade secret, proprietary information and technology used in or comprising the Products, Services and Products Software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided to us by you or any Authorized User (collectively, “Our Intellectual Property”) are owned by, and are vested in, us (or our applicable licensors or suppliers). Other than as expressly set forth in this Agreement, no license or other rights in Our Intellectual Property are granted to you and all such rights are hereby expressly reserved by us.
8.2 Aggregated Data. All data of any kind or type derived, generated, processed, produced or created from the use of our Products and Services shall be and hereby is the sole and exclusive property of us including, without limitation, aggregated and statistical data derived from the operation of the Services and the performance results of the Services (the “Aggregated Data”). Nothing herein shall be construed as prohibiting us from collecting, utilizing, transferring or sharing the Aggregated Data for purposes of our businesses, provided that such use of Aggregated Data does not disclose any personally identifiable information.
9. Warranty Disclaimer
9.1 Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR OUR LIMITED PRODUCT SERVICE WARRANTY ABOVE, THE PRODUCTS, SERVICES AND PRODUCT SOFTWARE ARE PROVIDED “AS-IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION AND NON-INFRINGEMENT, ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE USE OF OR INABILITY TO USE THE PRODUCTS, SERVICES AND PRODUCT SOFTWARE, (B) THE PROVISION OF OR FAILURE TO PROVIDE THE PRODUCTS, SERVICES, AND PRODUCT SOFTWARE OR ANY INFORMATION OR DATA THROUGH THE PRODUCTS, SERVICES AND PRODUCT SOFTWARE OR (C) OTHERWISE ARISING OUT OF THE USE OF THE PRODUCTS, SERVICES AND PRODUCT SOFTWARE OR UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, BY US, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ANGEE DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCTS, THE SERVICES OR PRODUCT SOFTWARE. ANGEE MAKES NO WARRANTY THAT THE PRODUCTS, SERVICES OR THE PRODUCT SOFTWARE OR THEIR USE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU USE THE PRODUCTS, SERVICES AND PRODUCT SOFTWARE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND ANGEE DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES RESULTING FROM YOUR USE OF THE PRODUCTS, SERVICES AND PRODUCTS SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF IMPLIED WARRANTIES SO THE ABOVE LIMITATIONS MAY OR MAY NOT APPLY TO YOU.
10. Limitation of Liability.
10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANGEE, OUR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, CONTRACTORS, DIRECTORS, OFFICERS OR SHAREHOLDERS (THE “ANGEE GROUP”) BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, DEATH, PROPERTY DAMAGE, DAMAGE TO OR LOSS OF PRODUCTS, LOSS OF DATA, OR LOST PROFITS, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE USE OF OR INABILITY TO USE THE PRODUCTS, SERVICES, AND PRODUCT SOFTWARE, (B) THE PROVISION OF OR FAILURE TO PROVIDE THE PRODUCTS, SERVICES, AND PRODUCT SOFTWARE OR ANY INFORMATION OR DATA THROUGH THE PRODUCTS, SERVICES AND PRODUCT SOFTWARE OR (C) OTHERWISE ARISING OUT OF THE USE OF THE PRODUCTS, SERVICES AND PRODUCT SOFTWARE OR UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF ANY ANGEE GROUP MEMBER, AND EVEN IF ANY ANGEE GROUP MEMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE.
10.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE ANGEE GROUP’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, LIABILITIES, AND CAUSES OF ACTION AND COSTS AND EXPENSES (INCLUDING LEGAL FEES) WHETHER IN CONTRACT, TORT, BY WAY OF STATUTE, OR ANY OTHER LEGAL THEORY WHATSOEVER, ARISING FROM OR RELATING TO THE PRODUCTS, SERVICES OR PRODUCT SOFTWARE GIVING RISE TO THE CLAIM, EXCEED THE SUBSCRIPTION FEES PAID BY YOU AND ACTUALLY RECEIVED BY ANGEE FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM IN THE PRIOR SIX (6) MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. WE DISCLAIM ALL LIABILITY OF ANY KIND OF OUR LICENSORS AND SUPPLIERS.
10.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY OR MAY NOT APPLY TO YOU.
10.4 TO THE EXTENT THAT YOU COMMUNICATE WITH ANY OF OUR REPRESENTATIVES, THE STATEMENTS, PROMISES OR ACTIONS TAKEN BY SUCH REPRESENTATIVE SHALL NOT LIMIT OR OTHERWISE MODIFY THE TERMS OF OUR DISCLAIMERS OR LIMITS OF LIABILITY IN THIS AGREEMENT AND THE TERMS OF OUR DISCLAIMERS, LIMITS OF LIABILITY AND THIS AGREEMENT SHALL APPLY TO ANY INFORMATION PROVIDED TO YOU THROUGH SUCH REPRESENTATIVE, OUR WEBSITE OR OTHERWISE THROUGH THE SERVICES.
THE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS CONTAINED ANYWHERE IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11. Dispute Resolution and Arbitration
11.1 PLEASE READ THIS SECTION CAREFULLY; IT CONTAINS MANDATORY, NON-PERMISSIVE ARBITRATION REQUIREMENTS. FOLLOW THE INSTRUCTIONS IN SECTION 12 BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
11.2.1 You and Angee agree to arbitrate all disputes and claims that in any way arise from or relate to this Agreement, its interpretation, or a breach hereof. This agreement to arbitrate is intended to be interpreted broadly to cover, without limitation: claims arising from or relating to any aspect of your and Angee’s relationship created by or involving this Agreement, regardless of legal theory; claims that arose before you accepted this Agreement, such as (for example) claims related to statements made in connection with this Agreement or the Products or Services; claims that arise after this Agreement terminates or you stop using the Products or Services; claims against your or Angee’s respective parent companies, subsidiaries or affiliates, providers, contractors, and agents as well as the respective officers, directors, employees, shareholders, providers, contractor, agents, predecessors, successors, and assigns of such entities, you, and Angee; and, claims relating to the validity, interpretation, and scope of this arbitration agreement.
11.2.2 This arbitration agreement does not preclude you or Angee from bringing an individualized action in small claims court, seeking an individualized preliminary injunction or temporary restraining order in any court with competent jurisdiction pending arbitration, or attempting to resolve the Dispute privately. You or Angee also may seek injunctive or other equitable relief to protect your or Angee’s trade secrets and intellectual property rights, or to prevent loss or damage to Angee’s Products or Services, in any court with competent jurisdiction. This arbitration agreement does not bar you from bringing issues to the attention of federal, state or local agencies, who may, if legally permitted, seek relief against Angee on your behalf.
11.2.3 This arbitration agreement shall be enforceable under and subject to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
11.3 Notice of Disputes; Procedure for Arbitration.
11.3.1 If you or Angee intend to seek arbitration of a Dispute, that party shall provide written notice pursuant to Section 13 hereof. All Disputes shall be finally settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its Consumer Arbitration Rules (the “Rules”). If you file arbitration, you will incur a nonrefundable filing fee, payable on filing, pursuant to the fee schedule set forth in the Rules. Other than such filing fee, Angee will pay AAA’s fees and the arbitrator’s costs and expenses, unless the arbitrator determines you filed a Dispute that is frivolous or for sole purpose of being vexatious or to annoy.
11.3.2 AAA’s rules and procedures governing the filing and process of AAA consumer arbitration, as well as the AAA consumer arbitration fee schedule, can be found in the Rules, available at www.adr.org. You also may contact AAA at 1-800-778-7879. The Rules and other AAA information may be amended from time to time and are subject to change.
11.3.3 The arbitration will be heard and determined by a single neutral arbitrator selected by the AAA who is a retired judge or a lawyer with not less than 15 years of experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the arbitration in accordance with the Rules. The arbitrator will apply applicable law (pursuant to Section 16.6 hereof) and the provisions of this Agreement and will determine any Dispute according to the applicable law and facts based upon the record and no other basis. The arbitrator’s decision will consist of a written statement stating the disposition of each claim of the Dispute, and will provide a statement of the essential findings and conclusions on which the decision and award (if any) is based. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
11.3.4 If an in-person arbitration hearing is required, it will be conducted at the American Arbitration Association’s office in a location reasonably convenient to and agreed upon by you and Angee, which agreement shall not be unreasonably withheld by either you or us. If the parties are unable to agree on a location, the arbitrator shall decide the location.
11.3.5 In arbitration, as in court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (1) THERE IS NO JUDGE OR JURY, (2) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (3) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. You and Angee agree the arbitration shall be confidential. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing.
11.3.6 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR ANGEE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR ANGEE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13) WITHIN 1 YEAR AFTER THE DISPUTE ARISES — OR IT WILL BE FOREVER BARRED, except that Angee may bring an action at any time relating to its intellectual property rights.
11.3.7 If AAA is unable to administer a Dispute, the Dispute shall be finally settled by another arbitration organization as you and Angee shall choose. If you and Angee cannot agree on such organization, a court of competent jurisdiction shall select one. Arbitration shall then proceed in accordance with that organization’s applicable rules.
11.4 Waiver of Jury Trial and Class Actions. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND ANGEE EACH ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL, OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND ANGEE EACH AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE, OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THIS ARBITRATION AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION AGREEMENT ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND ANGEE WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY, AND ALSO WAIVE RIGHTS TO A TRIAL BY JURY. IF FOR ANY REASON ANY PROVISION OF THIS ARBITRATION AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, IT SHALL BE SEVERED AND THE REMAINING PROVISIONS ENFORCED AS THOUGH THE OFFENDING PROVISION WERE NOT INCLUDED HEREIN.
12. Arbitration Opt Out Right.
12.1 YOU HAVE THE RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE BY PROVIDING WRITTEN NOTICE TO ANGEE OF YOUR INTENTION TO DO SO, IN ACCORDANCE WITH SECTION 13, WITHIN 30 DAYS OF THIS AGREEMENT BECOMING BINDING. Such notification must include: (a) your name; (b) the email address associated with your Account; (c) your mailing address, and (d) a statement that you do not wish to resolve Disputes through arbitration. This notification affects this Agreement; if you previously entered into other arbitration agreements with Angee or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in this Agreement shall not affect the other arbitration agreements between you and Angee.
12.2 IN THE EVENT THAT YOU PROPERLY OPT OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH THIS SECTION 12: YOU AND ANGEE EACH HEREBY (A) IRREVOCABLY AGREE THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING (“SUIT”) ARISING OUT OF OR IN CONNECTION WITH OR DUE TO ANY CLAIM OR DISPUTE THAT HAS ARISEN OR MAY ARISE BETWEEN YOU AND ANGEE MUST BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN NEW CASTLE COUNTY, STATE OF DELAWARE, IRRESPECTIVE OF CHOICE-OF-VENUE RULES; (B) CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURT IN ANY SUCH SUIT; (C) WAIVES ANY OBJECTION THAT YOU OR ANGEE MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT; (D) CONSENT TO SERVICE OF PROCESS IN ACCORDANCE WITH THE NOTICE PROVISIONS IN SECTION 13; AND (E) WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH SUIT, AND, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY SUIT ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
All notices required to be given to us pursuant this Agreement (and Section 12) shall be deemed to have been duly given if in writing and mailed by regular mail, postage prepaid, or overnight delivery, by a reputable, national overnight delivery service to Angee at its current principal place of business, or if emailed to us, at:
By mail: 2955 Campus Drive
San Mateo, CA 94402
Attn: Customer Service
By email: email@example.com
All notices required to be given to you shall be deemed to have been duly given if in writing and sent to the e-mail address on file with Angee. You are responsible to provide Angee with any changes to your e-mail address.
14. Export Compliance
You acknowledge that the Product Software and all related technology and software you use in connect with the Services are subject to U.S. export control laws U.S. and may be subject to export or import regulations in other countries. You agree to strictly comply with all applicable international and national laws and regulations that apply to such software and technology, including the U.S. Export Administration Regulations as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. You acknowledge that you have the responsibility to obtain authorization to export, re-export, or import such software and technology, as may be required. You will indemnify and hold Angee harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
15. Force Majeure
We shall be excused from performance and not be liable for any loss resulting from a cause over which we do not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer products or software; failure or unavailability of Internet access; problems with Internet service or other equipment or services relating to your computer or mobile devices; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities, telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes.
16. General Provisions
16.1 Entire Agreement. This Agreement and any document made a part of this Agreement represents the entire agreement between you and us with respect to the Products, Services and Subscription Services and its terms supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products, Services and Subscription Services or any other subject matter covered by this Agreement.
16.2 Assignment; Subcontract. Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment shall be void and without effect.
16.3 No Amendment or Waiver. No provision of this Agreement will be deemed waived, amended or modified unless made in writing and signed by you and us. No waiver of rights shall constitute a subsequent waiver of any rights whatsoever. The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision.
16.4 Severability. The provisions of this Agreement are severable and any provision determined to be void or unenforceable shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of this Agreement and such invalid provision shall be replaced with an enforceable provision which achieves to the greatest extent possible your’s and Angee’s original intent.
16.5 Governing Law. This Agreement shall be governed by the State of Delaware without regard to its or any other jurisdiction’s conflicts of law principles. The interpretation of this Agreement shall not be construed against us as the drafter.
16.6 Privacy and Data Protection Laws. Our Products and Services are primarily intended for purely personal and household use. Nonetheless, data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. For certain video, audio, and facial recognition data (to the extent made available by the Services) that you collect using the Products and Services (e.g., video and audio signals and data) you are the controller of certain data these Products and Services collect, and we are the processor of that data, under applicable laws. You agree that you (and not we) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services, including, but not limited to, (a) any laws relating to the recording or sharing of video or audio content that includes third parties or public spaces, or (b) any laws requiring notice to third parties, or consent or explicit consent of third parties with respect to your use of our Products and Services.