Effective Date: 11/01/2012
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE TERMS INCLUDE AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER (SECTION 11), AND DISCLAIMERS OF WARRANTY AND LIABILITY (SECTION 9).
All information you submit to create a user account must be accurate and kept up to date. You are responsible for maintaining the confidentiality of your user identification and password, and for all use of your account. You agree not to use any account, username, email address or password of another user at any time. You agree to notify us immediately if you suspect any unauthorized access to your account or password. You may terminate your account at any time for any reason. The Company may terminate your account and/or access to the Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. These Terms will remain in effect after termination of a user account or access to the Services.
The Company makes no warranty, and accepts no liability for any losses or damages whatsoever, relating to or in connection with your placement of an order with the Processor. You are solely responsible for any and all transactions utilizing your Personal Financial Information, including, but not limited to, any and all charges. You acknowledge and agree that in the event the Processor experiences a data breach that affects your Personal Financial Information, the Company will in no way be responsible or liable to you for any such breach. You should maintain records of all your purchasing transactions. If you have any questions regarding your transactions or believe that there is an error or unauthorized transaction or activity associated with transactions utilizing your Personal Financial Information, please contact the Processor directly.
The Services may contain information, software, text, files, images, video, sounds, musical works, works of authorship, applications, and other materials or content belonging to the Company, the Company's licensors, partners, affiliates, and other third parties (collectively, "Company Content"). All Company Content is protected by copyright, trademark, patent, trade secret and other laws, and as between you and the Company, the Company owns and retains all rights in the Company Content. Upon your assent to these Terms, the Company hereby grants you a limited, revocable, nonsublicensable license to access and use the Services, and use and display the Company Content (excluding any software code) solely for your personal, non-commercial use in connection with your authorized use of the Services. Except as expressly permitted by the Company, you may not copy, download, stream capture, reproduce, duplicate, archive, upload, modify, translate, publish, broadcast, transmit, retransmit, distribute, perform, display, sell or otherwise use any Company Content.
Except as expressly permitted by the Company, you are strictly prohibited from creating works or materials (including but not limited to fonts, icons, link buttons, wallpaper, desktop themes, on-line postcards, montages, mash-ups and similar videos, greeting cards and unlicensed merchandise) that derive from or are based on the Company Content. This prohibition applies regardless of whether the derivative works or materials are sold, bartered or given away. You may not either directly or through the use of any device, software, internet site, web-based service or other means remove, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Company Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Company Content including geo- filtering mechanisms. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Company Content unless authorized by the Company. You may not build a business utilizing the Company Content, whether or not for profit.
The Services are offered for your personal use only and may not be used for any commercial purposes unless specifically authorized by the Company. You understand that you are responsible for all content that you post, upload, transmit, email or otherwise make available on, through or in connection with the Services (collectively, "User Content"). You understand that the Company does not control the User Content and the Company assumes no responsibility or liability for objectionable User Content. If you become aware of misuse of the Services, please report this immediately to the Company. The Company assumes no responsibility for monitoring the Services for inappropriate User Content or conduct. If at any time, the Company chooses in its sole discretion to monitor the Services, the Company nonetheless assumes no responsibility for User Content other than Company Content, and assumes no obligation to modify or remove any inappropriate User Content, or responsibility for the conduct of any user.
You agree not to do any of the following in connection with your use of the Services:
The Company reserves the right, but disclaims any obligation or responsibility, to remove User Content that violates these Terms, as determined by the Company in its sole discretion. You acknowledge the Company reserves the right to investigate and pursue legal action against anyone who, in the Company's sole discretion, violates these Terms, including but not limited to, terminating their user account and/or reporting such User Content, conduct, or activity to law enforcement authorities.
The Company does not claim any ownership rights in the User Content that you post, upload, email transmit, or otherwise make available on, through or in connection with the Services; provided, however, that User Content shall not include any content posted by a user that is already owned by the Company or any of its affiliates. By posting any User Content on, through or in connection with the Services, you hereby grant to the Company and its affiliates, licensees and authorized users, a perpetual, non-exclusive, fully-paid and royalty-free, sublicensable, transferable (in whole or in part), worldwide license to use, modify, excerpt, adapt, create derivative works and compilations based upon, publicly perform, publicly display, reproduce, and distribute such User Content on, through or in connection with the Services or in connection with any distribution or syndication thereof to Third Party Services, on and through all media formats now known or hereafter devised, for any and all purposes including, but not limited to, promotional, marketing, trade or commercial purposes. The Company's use of such User Content shall not require any further notice to you and such use shall be without the requirement of any permission from or payment to you or to any other person or entity. The Company reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Services.
You represent and warrant that: (a) you own the User Content posted by you on, through or in connection with the Services, or otherwise have the right to grant the license set forth in this Section, and (b) the posting of User Content by you on, through or in connection with the Services and Third Party Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any User Content posted by you on or through the Services or Third Party Services.
The Company respects the intellectual property of others. If you believe that any material displayed through the Services infringes your copyright, please send the Company's Copyright Agent a notification of claimed infringement with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Services (such as the URL(s) of the claimed infringing material); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner's behalf; and (f) your physical or electronic signature. Notice to the Company's Copyright Agent may be sent to the contact information set forth in Section 15 below.
XY ONE (1) YEAR LIMITED WARRANTY
XY’s warranty obligations for this hardware product are limited to the terms set forth below:
Ength Degree LLC DBA XY (“XY”) warrants this XY-branded hardware product against defects in materials and workmanship under normal use for a period (the “Warranty Period”) of one year from the date of retail purchase by the original end-user purchaser. If a defect arises during the Warranty Period, and you follow the instructions for returning the product, we will either, at our option, (i) repair the product using either new or refurbished parts, (ii) replace the product with a new or refurbished product, or (iii) refund the purchase price of the product. XY does not warrant that the operation of the product will be uninterrupted or error-free. XY is not responsible for damage arising from failure to follow instructions relating to the product’s use.
The warranty for a repaired or replacement product will be valid for the longer of the remaining warranty of the original product or ninety (90) days from the date of replacement or repair.
EXCLUSIONS AND LIMITATIONS
This warranty does not apply: (i) to consumable parts, such as batteries, unless damage has occurred due to a defect in materials or workmanship; (ii) to cosmetic damage, including but not limited to scratches, dents and broken plastic; (iii) defects or damage caused by misuse, accident (including without limitation collision, fire and the spillage of food or liquid), neglect, abuse, alteration, unusual stress, modification, improper or unauthorized repair, installation, wiring, or testing, improper storage, use in an unapproved device; (iv) to damage caused by operating the product outside the permitted or intended uses described by XY; (v) to damage caused by use with non-XY products; (vi) to any non-XY hardware products or any software, even if packaged or sold with XY hardware.
XY does not warrant that the operation of the product will be uninterrupted or error-free. XY is not responsible for damage arising from failure to follow instructions relating to the product’s use.
THE EXPRESS WARRANTIES PROVIDED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OUR PRODUCTS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT AS PROVIDED IN THIS WARRANTY AND TO THE EXTENT PERMITTED BY LAW, XY IS NOT RESPONSIBLE FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED INCLUDING THE REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED OR USED WITH XY PRODUCTS AND ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA STORED ON THE PRODUCT.
BY PURCHASING THIS XY PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES HEREIN AND THAT NO WARRANTIES ARE MADE BY ANY OF OUR SUPPLIERS.
OBTAINING WARRANTY SERVICE
To obtain warranty service for any product that is subject to the foregoing warranty, you must notify XY (email@example.com) to obtain a Return Material Authorization (“RMA”) and return the defective product together with proof of purchase to the address specified by XY in connection with the RMA. Any replacement product becomes your property and the replaced item becomes our property. Alternately, if we refund the purchase price, you must return the defective product to us.
These Terms provides for final, binding arbitration of all disputed claims (discussed below). The laws of the State of California will govern these Terms, without regard to conflicts of law provisions. The Company and you agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, you shall notify the Company and provide a brief summary of the claim and request for relief. If the dispute is not resolved within 60 days of notification, you may proceed to initiate arbitration proceedings or any other proceedings authorized herein.
Except to the limited extent noted below, any controversy, claim or dispute arising out of or relating in any way to your use of the Services shall be resolved by final and binding arbitration. The arbitration shall take place in San Diego County, California in accordance with the Commercial Arbitration Rules (the "Rules") of the American Arbitration Association ("AAA"). Unless a hearing is requested (which may be conducted by telephone), the parties will submit their arguments and evidence to the arbitrator in writing, and the arbitrator will make an award based only on the documents (e.g., a "desk arbitration"). In no event shall the parties be required to travel to San Diego to participate in the arbitration.
If you decide to commence arbitration, the provider will require you to pay a filing fee based on the amount of the claim. The Company will reimburse you for any filing fees incurred in excess of $125 after arbitration is initiated, and you will be reimbursed the initial $125 fee if the arbitrator ultimately rules in your favor. This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall exclusively determine any and all challenges to the arbitrability of a claim. The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction. The arbitrator shall not have the power to commit errors of law or legal reasoning, make clearly erroneous factual findings, or abuse his or her discretion, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
Both you and the Company waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else. Notwithstanding any provision in the Rules to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, collective, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
You may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class action waiver by sending a notice within 30 days of your initial use of the Services that specifies (1) your name, (2) your mailing address, and (3) your request to be excluded from the final, binding arbitration procedure and class action waiver set forth herein. All other terms shall continue to apply, including the requirement to pre-dispute notification and mediation, and non-arbitrated claims or disputes arising out of or relating to this Agreement or the use of any of the Services will be resolved exclusively in the state or federal courts in San Diego County, California with the parties consenting to such exclusive jurisdiction and venue.
You agree to indemnify, defend and hold harmless the Company, its parents, subsidiaries and affiliates, and any of their officers, directors, shareholders, employees and agents, from any losses, liabilities, claims, obligations, demands, fines, penalties, costs and expenses (including reasonable attorneys' fees) related to or arising out of your use of the Services, your breach of these Terms, your violation of any rights of any third party (including any third party website terms of service or privacy policies), or from any User Content that you post or otherwise submit on, through or in connection with the Services. Your indemnification obligation will survive these Terms and your use of the Services.
The failure of the Company to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The Section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms operate to the fullest extent permissible by law. If any provision of these Terms is unlawful, void or unenforceable, that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The Company's contact information for all matters related to these Terms is as follows:
XY - the Findables Company
1133 Columbia Street - Suite 205
San Diego, CA 92101