Terms of Services
Updated on 12/1/2018
Welcome to devicebook™!
Please read this terms of service agreement (“Terms”) carefully. This devicebook application, mobile applications, website, and any other websites (each, an “App”) of devicebook, Inc., its affiliates or agents, and the information and services provided through them (collectively, the “Services”) are controlled by devicebook, Inc. (“devicebook”, “we”, “us” or “our”). By using and accessing the Services, clicking on the Accept button, completing the registration process, and/or browsing the website or downloading our mobile application, you represent that (1) you have read, understand and agree to be bound by these Terms, (2) you are at least thirteen (13) years of age, and if you are between the ages of thirteen (13) and eighteen (18) years, you are only accessing or using the Services under the supervision of a parent or guardian, and (3) you have the authority to enter into these Terms personally or on behalf of the company you have named as the user, and to bind that company to these Terms. If you do not agree to be bound by these Terms, you may not access or use the Services.
We keep improving our Services, and when we do, additional terms may apply. Those additional Terms will either be listed in the Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service subject to those additional terms. Any such additional terms will become part of these Terms if you use those Services.
We may modify the Terms from time to time, and it will be indicated at the top of this page the date that revisions were last made. Your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THESE TERMS TO VIEW THE THEN-CURRENT VERSION.
Your use of, and participation in, certain Services may be subject to additional terms, policies, and guidelines (“Supplemental Terms”), including but not limited to, the Content Guidelines, and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. Any such Supplemental Terms are hereby incorporated into these Terms.
To access or use our Services, you must be at least thirteen (13) years or older. If you are between the ages of thirteen (13) and eighteen (18) years, you must only use the Services under the supervision of a parent or guardian, who is also bound by these Terms on your behalf.
a. Description of Services. The “Services” as used in these Terms are collectively referred to as the devicebook Platform, and all such other products and services made available by devicebook to its users (“Users”), as described in this section.
The devicebook Platform is a cloud-based service designed to allow users to control and network their Linked Device(s) as desired, bounded only by the extent of their imagination. Users can control, network, and manipulate device(s) through the user interface (“SoftPanel”) of an instance of the corresponding software representation of the device (“SoftDevice”), or indirectly through a DeviceScript program (“DApp”) in the devicebook App. DeviceScript is a control-flow language which manipulates Linked Device(s) through the corresponding SoftDevice(s). The DeviceScript language environment consists of an input-output-method (such as control panel, voice, or motion), a run-time, a visual editor, and a compiler.
Besides the DeviceScript language and environment, the devicebook Platform includes the devicebook App, devicebook Infrastructure, devicebook Cloud, devicebook Website, and devicebook programs:
devicebook App: means the devicebook App which a User uses as the Interface to devicebook Cloud, and uses to keep track of interested devices, owned devices, linked devices, shared devices, and DApps, as well as uses to keep track of the User’s activities, and circle of friends. A User could also use devicebook App to author DApps, SoftDevices, vote favorites, and express reviews and opinions. devicebook App contains a software network-bridge module which acts as a software router, is capable of sensing and connecting with wireless devices, and communicates with devicebook Cloud. A device which runs the devicebook App is herein referred to as an “App Device”.
devicebook Infrastructure: means the software facilities, programs, components, databases and storages required for the existence, operation, management and service support of Users, Devices, Security, devicebook Apps, DeviceScript (language, compiler, interpreter, editor, run-time, and environment), SoftDevices, DApps, Non-DApp programs, vetting process, votes, Q&As, Request/Response to/from other Users, Feedback, databases, storages, programs, networks, devicebook Website, etc. as a functioning whole.
devicebook Cloud: means the devicebook Infrastructure which is hosted over Internet by devicebook’s cloud computing provider.
devicebook Website: means the website owned and operated by devicebook currently available at www.devicebook.com.
devicebook programs: means DApp programs (programs created with DeviceScript), non-DApp programs (programs created with other languages and development kits, which use devicebook facilities or functions, by our Users), or SoftDevices written by devicebook. A Non-DApp program is made available through devicebook or linked with devicebook.
A device is considered a “Linked Device” once the device is connected (for control, networking, and manipulation), and bound via the instance of the corresponding SoftDevice, and named to devicebook by its owner (User). For each Linked Device, devicebook synchronizes the Linked Device with the corresponding SoftDevice instance in real time. In turn, a User can manipulate the Linked Device in devicebook through DApps or SoftPanel.
A User can only access, control, and network Linked Devices which they own, or Shared Devices which they have been granted permission to access and use accordingly. Device ownership is claimed when a Device is linked to its corresponding SoftDevice in the devicebook App by a User (“Owner”) for the first time. A “Shared Device” is a Linked Device which has been shared among other Users. An Owner could grant the permit of sharing of a Linked Device to other Users. Thus, a Shared Device is accessible and can be used by all Sharing Users, i.e. Owner and permitted Users. A Sharing User agrees to let other (i.e., permit) Sharing Users use his or her App Device(s) as a network-bridge to access the Shared Device(s) when it becomes necessary. Only the Owner of a Linked Device can issue permissions of use to others.
A DApp is considered a Linked DApp once the DApp is linked to its corresponding Linked Devices, defined in the DeviceScript program, and named to devicebook by its Owner (User).
SoftDevices, and DApps are made and published by devicebook Users, i.e. Maker (of SoftDevice) and Creator (of DApp), and us.
b. Access to the Services
Right to Use the Services. devicebook grants you a personal, worldwide, royalty-free, non-assignable, non-transferable, non-sublicensable, non-exclusive, and terminable license to access and use the Services. Subject to your compliance with the Terms, devicebook grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the devicebook App on one or more App devices, that you own or control and to run such copy of the devicebook App, solely for your own personal, non-commercial use. If you are interested in obtaining a business account and business license (“Business Account”), which will allow you to use devicebook Services for commercial purposes, please send your company name, contact person, and interests to email@example.com. Furthermore, with respect to any devicebook App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. The foregoing licenses are granted for the sole purpose of enabling you to use the benefit of the Services as provided, in the manner permitted by these Terms, and this license will terminate once your account is terminated by you or by us. devicebook, its suppliers and service providers reserve all rights not granted in the Terms. Any future release, update or other addition to the Services shall be subject to the above restrictions and these Terms.
Account Registration. You must create an account in order to use some of the features that are offered through the Services. We reserve the right to close your account at any time for any or no reason. Your access to, and use of the Services is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, incorrect, unstable, unfinished, nonfunctional, unsecured, or otherwise inappropriate; you might be subject to the Services that is unstable, insecure, inaccurate, failing to function normally or satisfactorily, or even destructive. You agree not to create an account or use the Services if you have been previously removed by us, or if you have been previously banned from any of the Services. We grant you permission to use the Services subject to the restrictions in these Terms.
In registering an account to access and use the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration (the “Account Information”); and (2) maintain and promptly update the Account Information to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Services under these Terms or the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for the confidentiality of your account, and all activities that occur under your account. You agree that you shall monitor your account to restrict use by children under thirteen (13), and you will accept full responsibility for any unauthorized use of Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one account at any given time.
Updates and Changes to the Services. We are constantly improving and changing our Services. The Services may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability. You can stop using our Services at any time, and we will be sorry to see you go. devicebook may also stop providing Services to you, or add or create new limits to our Services at any time. We may also require you to accept updates to the Services that you have installed on your “Home” (Home page in your devicebook), Linked Device(s) and Linked DApp(s). You acknowledge and agree that we may update aspects of the Services with or without notifying you. You may need to update third-party software from time to time in order to continue using the Services.
a. Definitions. As used herein, the following terms shall have the following definitions:
Content means information, data, text, software, music, sound, photographs, graphics, video, messages, reviews, comments, vetting content, voting content, user requests, feedback, location, and all other data or communications or materials accessible through Services.
Your Content means Content that you (as a User) contribute, submit, or transmit to, through, or in connection with the Services, which may include but not be limited to the following: (A) My Profile: your name (or nickname), biography, tagline, description, images, photos; (B) SoftDevices which you made or/and published; (C) DApps which you made or/and published; (D) Non-DApp programs which you make available to devicebook Users; and (E) your reviews, Feedback, votes, questions and answers, and requests or responses to other Users.
User Content means Content that Users of the Services contribute, submit or transmit to, through, or in connection with the Services.
devicebook Content means Content that devicebook creates, develops, generates, derives, and/or makes available in connection with the Services.
Third Party Content means Content that originates from parties other than devicebook or its Users, which is made available in connection with the Services.
Services Content includes Your Content, User Content, Third Party Content, and devicebook Content.
b. Your Liability for Your Content. You alone are responsible for Your Content, and once submitted or published, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone's reliance on its quality, accuracy, correctness, security, or reliability, or any disclosure by you of information in Your Content. You represent that you own, or have the necessary permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by devicebook.
You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation; contains software that is intentionally incorrect, inaccurate, insecure, or destructive to other Users or to devicebook.
c. Devicebook’s and Users’ Rights Regarding Your Content. You hereby grant us world-wide, perpetual, irrevocable, non-exclusive, royalty-free, assignable, sub-licensable, transferable rights to use Your Content for any purpose. By "use" we include, without limitation, use, run, download, install, execute, copy, publicly perform and display, reproduce, distribute, incorporate, translate, remove, analyze, commercialize, and prepare derivative works of, Your Content. We may use Your Content in several different ways, including publicly displaying it, reformatting it, incorporating it into advertisements* and other works, creating derivative works from it, promoting it, using it, and distributing it.
User Content (including any that may have been created by users employed or contracted by devicebook) does not necessarily reflect the capability or opinion of devicebook. We reserve the right to delete, or partially delete, User Content from time to time at our sole discretion for any reason or no reason, and without notice to you. For example, we may delete a review if we believe it violates our Content Guidelines. We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content.
Please note that you also grant the Users of the Services the irrevocable, perpetual right to access Your Content in connection with their use of the Services. These licenses and the rights you grant continue even if you stop using our Services or terminate your account with us. You represent that you have the necessary rights to grant us this license for any Content that you submit to our Services.
Finally, you irrevocably waive, and cause to be waived, against devicebook and its Users any claims and assertions, or any claims and assertions of moral rights, or attribution with respect to Your Content.
3. INTELLECTUAL PROPERTY RIGHTS
a. Your IP Rights. As between you and devicebook, you own Your Content.
b. devicebook IP Rights. We own the devicebook Content, including but not limited to visual interfaces, interactive features, graphics, drawings, designs, software, programs, infrastructure, know how, APIs (Application Programming Interface), compilation, including, but not limited to, our compilation of User Content and other Services Content, computer code, products, software, aggregate or statistical or any derivatives of information and data contained and processed in the Services and Services Content, and all other elements and components of the Services excluding Your Content, User Content and Third Party Content.
We also own the copyrights, trademarks, service marks, trade names, software, applications, products, design and know-how of the software or applications or products, and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the devicebook Content and the Services, including but not limited to the devicebook App, devicebook websites, devicebook infrastructure, devicebook Cloud, SoftDevices, DApps, Non-DApps, and DeviceScript (language, visual editor, compiler, interpreter, run-time, and environment), which are protected by copyright, trade secret, trade dress, patent, trademark laws, and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Services and devicebook Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Services and the devicebook Content are retained by us.
c. Feedback.By sending us any ideas, suggestions, documents or proposals ("Feedback"), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, perpetual, non-exclusive, royalty-free, perpetual, assignable, transferable, sub-licensable, worldwide license to use, modify, prepare derivative works, publish, distribute and sub-license the Feedback, and you irrevocably perpetually, waive, and cause to be waived, against devicebook and its users any claims and assertions of any moral rights contained in such Feedback.
4. THIRD-PARTY SERVICES AND INTELLECTUAL PROPERTY
a. Third-Party Services. The Services may include links to other websites or applications or require you to download or otherwise access a third party’s products or services in connection with your use of the Services (each, a "Third-Party Service"). We do not control or endorse any Third-Party Service or Third-Party Content. You agree that we are not responsible for the availability, accuracy, usability, stability, or contents of such Third-Party Services and Third-Party Content. Your use of Third-Party Services and Third-Party Content is solely at your own risk.
b. Third-Party Advertisements. devicebook reserves the right to display advertisements for third parties before, after, or in conjunction with Your Content posted on the Services, and you acknowledge and agree that devicebook has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by devicebook as a result of such advertising).
c. Open Source. Some of the services made available through the Services may be subject to additional third-party or open source licensing terms and disclosures. Some provisions in such open source licensing terms may expressly override some of the provisions set forth in these Terms.
5. RESTRICTIONS ON USE OF THE SERVICES
We are under no obligation to enforce the Terms on your behalf against another User. While we encourage you to let us know if you believe another User has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion. Any unauthorized use of the Services or other violation of the following restrictions terminates the licenses granted by devicebook pursuant to the Terms.
YOU AGREE NOT TO, AND WILL NOT ASSIST, ENCOURAGE, OR ENABLE OTHERS TO USE THE SERVICES TO:
a. Violate our Content Guidelines, for example, by making un-usable or even destructive SoftDevices or DApps; or by writing a false or defamatory review, trading reviews with other businesses, or compensating someone or being compensated to write or remove a review.
b. Violate any third party's rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
c. Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
d. Promote a business or other commercial venture or event, or otherwise use the Services for commercial purposes, except in connection with a Business Account, (interested parties should send a request to firstname.lastname@example.org), and as explicitly authorized by devicebook;
e. Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Services' search results or any third party websites and services;
f. Solicit personal information from minors; or submit or transmit pornography; or violate any applicable law.
g. Assist, encourage, or enable others to violate the Terms;
h. License, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services,
i. Modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services;
j. Except as expressly stated herein, copy, reproduce, distribute, download, display, post, or transmit in any form or by any means the Services or Services Content (other than Your Content), except as explicitly authorized herein or by devicebook;
k. Frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of devicebook
l. Use any metatags or other “hidden text” using devicebook’s name or trademarks;
m. Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Services or any Services Content;
n. Access the Services in order to build a similar or competitive website, application or service;
o. Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services;
p. Record, process, or mine information about other users;
q. Access, copy, duplicate, retrieve or index any portion of the Services for purposes of constructing or populating a searchable database of any purpose;
r. Reformat or frame any portion of the Services;
s. Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on Services’ infrastructure or otherwise make excessive traffic or storage demands of the Services;
t. Attempt to gain unauthorized access to the Services, Services Content, user accounts, user or business devices, computer systems, Services infrastructure, or networks connected to the Services through hacking, password mining or any other means;
u. Use the Services, or any Services Content, or any devices to transmit any computer viruses, worms, defects, Trojan horses, denial-of-service attack, or other items of a destructive nature ("Viruses");
v. Use any device, software or routine that interferes with the proper working of the Services, or otherwise attempt to interfere with the proper working of the Services;
w. Use the Services to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Services or Services Content; or
x. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of Services Content, or features that enforce limitations on the use of the Services.
You agree to indemnify, defend, and hold devicebook, its subsidiaries, affiliates, any related companies, suppliers, licensors, partners, and commercial account holders, and the officers, directors, employees, agents and representatives of each of them (collectively, the "devicebook Entities") harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) your access to or use of the Services and the Services Content, (ii) your violation of the Terms, (iii) Your Content; (iv) any products or services purchased or obtained by you in connection with the Services, or (v) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. devicebook reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without the prior written consent of devicebook. devicebook will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. DISCLAIMERS OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE DEVICEBOOK ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. AS SUCH, YOUR USE OF THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK. THE DEVICEBOOK ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES, ITS SAFETY OR SECURITY, OR THE SERVICES CONTENT. ACCORDINGLY, THE DEVICEBOOK ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SERVICES' INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE SERVICES AND THE SERVICES CONTENT, OR ANY METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT DEVICEBOOK DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SERVICES.
THE DEVICEBOOK ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SERVICES OR THE SERVICES’ USERS. ACCORDINGLY, THE DEVICEBOOK ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED IN OUR SERVICES. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SERVICES IS AT YOUR OWN DISCRETION AND RISK.
THE DEVICEBOOK ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICES, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE DEVICEBOOK ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY.
DEVICEBOOK ENTITIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. DEVICEBOOK MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEVICEBOOK OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, DEVICEBOOK MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT DEVICEBOOK’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
8. LIMITATIONS OF LIABILITY
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SERVICES.
THE DEVICEBOOK ENTITIES' MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICES OR THESE TERMS IS LIMITED TO THE GREATER OF (i) THE AMOUNT PAID, IF ANY, BY YOU TO THE DEVICEBOOK ENTITIES IN CONNECTION WITH THE SERVICES IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $50.
THE DEVICEBOOK ENTITIES DISCLAIM LIABILITY FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS INTERRUPTION, (iv) REPUTATIONAL HARM, (v) PERSONAL INCONVINENCE, (vi) LOSS OR DAMAGE OF PROPERTY OF ANY KINDS, OR (vii) LOSS OF INFORMATION OR DATA OF ANY KIND.
9. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
It is devicebook’s policy to terminate the account of any user who repeatedly infringes copyright upon prompt notification to devicebook by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written 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; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for devicebook’s Copyright Agent for notice of claims of copyright infringement is as follows: email@example.com.
10. CHOICE OF LAW AND VENUE
These Terms, as well as any claim, cause of action or dispute that might arise between you and devicebook, will be governed by the laws of the State of Delaware, without regard to conflict of law provisions. FOR ANY CLAIM BROUGHT BY EITHER PARTY, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF DELAWARE, U.S.A.
11. DISPUTE RESOLUTION
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with devicebook and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement.You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with devicebook, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or devicebook may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH DEVICEBOOK, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST COMPANY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: The Corporation Trust Company, Corporation Trust Center, 1118th Ave., 13th Fl, New York, NY 10011. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at www.jamsadr.com/rules-streamlined-arbitration; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at www.jamsadr.com/rules-comprehensive-arbitration. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, devicebook will pay them for you. In addition, devicebook will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, devicebook will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and devicebook. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial. YOU AND DEVICEBOOK HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and devicebook are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as expressly set forth herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court.
f. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: devicebook, firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your devicebook account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
g. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
h. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with devicebook.
i. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if devicebook makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to devicebook.
We may close your account, suspend your ability to use all or certain portions of the Services, and/or terminate your Account and prohibit your continued use of the Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Services, Your Content, Services Content, or any other related information.
In the event of any termination of these Terms, whether by you or by us, any license we had granted you to use our software in connection with the Services will immediately terminate. Sections 2,3,4,5 and 7 through 15 of these terms will remain in force, including our right to use Your Content.
We may translate these Terms into other languages for your convenience. Nevertheless, the English version governs your relationship with devicebook, and any inconsistencies among the different versions will be resolved in favor of the English version.
14. ACCESSING AND DOWNLOAD THE APPLICATION FROM ITUNES.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
a. You acknowledge and agree that (i) the Terms are concluded between you and devicebook only, and not Apple, and (ii) devicebook, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
b. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
c. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between devicebook and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of devicebook.
d. You and devicebook acknowledge that, as between devicebook and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. You and devicebook acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between devicebook and Apple, devicebook, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
f. You and devicebook acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
g. Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
15. GENERAL TERMS
a. Electronic Communications. The communications between you and devicebook use electronic means, whether you visit Services or send devicebook e-mails, or whether devicebook posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from devicebook in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that devicebook provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
b. Release. You hereby release devicebook Entities and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor”. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a devicebook Entity or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the website or any Services provided hereunder.
c. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without devicebook’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
d. Force Majeure. devicebook shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
e. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
f. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and devicebook agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.
g. Notice. Where devicebook requires that you provide an e-mail address, you are responsible for providing devicebook with your most current e-mail address. In the event that the last e-mail address you provided to devicebook is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, devicebook’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to devicebook at the following address: firstname.lastname@example.org.
h. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
i. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
j. Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, 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. You also will not use Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by devicebook are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer devicebook products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
k. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
l. Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.