Terms of Sale and Services
These Terms of Service comprise the agreement between AmbyGear, a Delaware corporation (the “Company,” “we” or “us”), and you or the entity you represent (collectively, “you”), governing your use of this website (the “Site”) and the Services (as defined below). In addition, you acknowledge and agree that you shall also be subject to any posted rules or guidelines that may be applicable to our Site and Services, which may contain terms and conditions in addition to those in these Terms of Service
Furthermore, you agree by all terms and conditions as described in the iGPS Inc. Terms and Conditions.
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING THE SITE, PRE-ORDERING or PURCHASING OUR PRODUCTS, DOWNLOADING OUR APPS OR OTHERWISE USING OUR SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE AND ACKNOWLEDGE THAT THESE TERMS OF SERVICE CONSTITUTE A BINDING AND ENFORCEABLE AGREEMENT LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, PLEASE DO NOT USE, OR CEASE USING, OUR SITE AND SERVICES. IF YOU ACCEPT OR AGREE TO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS OF SERVICE.
We expressly reserve the right to modify these Terms of Service from time to time in our sole discretion without notice to you. You acknowledge and agree that it is your responsibility to review the Site and these Terms of Service from time to time and to familiarize yourself with any modifications. Your continued use of our Site or Services after such modifications will constitute your acknowledgement and acceptance of the modified Terms of Service and your agreement to abide and be bound by the modified Terms of Service.
DESCRIPTION OF SERVICES
We are the company behind the coolest smartwatch for kids (the “Product”). Our Product sends and receives GPS coordinates and other information to a smartphone that runs our app (the “Apps”) and said information to the cloud (the “Site”), where the information can be processed and accessed by our App or by our Site. Our Site and all related products, Apps and services are collectively referred to as the “Services.”
We may change, suspend or discontinue the Services at any time, including the availability of any feature or content. We may also impose limits on certain features and services or restrict your access to parts or all of the Site or Services without notice or liability. You may only use the Site and Services for your own personal, non-commercial use and not for the use or benefit of any third party and only in a manner that complies with all applicable laws, rules, regulations, tax requirements, ordinances and permits and all union, trade group and trade association requirements (“Applicable Laws”) that apply to you and in accordance with these Terms of Service. You will be solely responsible if your use of the Site or Services violates any Applicable Laws.
Any software embedded or incorporated in our Products is licensed to you and not sold. Accordingly, subject to these Terms of Service, we grant you a limited, non-exclusive, non- transferable, revocable license to use any such software solely in connection with your use of the Products and Services.
The Site and Services are intended solely for persons who are 18 years of age or older, and any access to or use of the Site or Services by anyone under the age of 18 is expressly prohibited. By accessing or using the Site or Services, you represent and warrant that you are 18 years of age or older.
In creating and using your account, you agree to provide true, accurate, complete and current information on any registration form required and maintain and promptly update the account information to keep it true, accurate, current and complete. You also acknowledge and agree that you may not have more than one active account. If you provide any account information that is not, or we reasonably suspect is not, true, accurate, current and incomplete, or if you create more than one active account, we may suspend or terminate your account and our Services and refuse any and all current or future use by you of your account or our Site or Services.
CHILDREN'S ONLINE PRIVACY PROTECTION RULE ("COPPA")
By purchasing and giving the SmartWatch to a child, who is 13 years old or younger, you agree that you are the parent and/or guardian of the child and have the authority over the child. We might collect information such as GPS location, name, and other related information of the child and the parent or guardian for the purpose of providing the services for which you have subscribed to.
The pictures, videos, text, music, messages, information or other content or materials made available through our Site or Services (the “Content”) is protected by copyright. Other than with respect to your own User Submitted Content (defined below), you may not reproduce, republish, upload, post, transmit, or distribute in any way Content from our Site or Services without the written permission of the copyright owner. Modification of the Content or use of the Content for any other purpose is a violation of the copyrights and other proprietary rights of us or other persons or entities where so indicated.
Permission for all other uses of Content, including reproducing and distributing multiple copies, or linking to any webpage on our Site except the “home page,” requires our advance consent. The use of any such Content on any other website or networked computer environment is prohibited. All design rights, databases, compilations and other intellectual property rights, in each case whether registered or unregistered, and related goodwill are proprietary to the owner of such Content.
Notwithstanding the foregoing, by uploading and/or posting any User Submitted Content to the Site or otherwise by using the Services, you grant us a perpetual, nonexclusive and royalty-free right to use the User Submitted Content (and the user name that is submitted in connection with such User Submitted Content) as is reasonably necessary in order to enable us to provide the Services, including to display the User Submitted Content through the Services or to process the sale of Products.
You represent and warrant that (i) you own or otherwise control all of the rights to the User Submitted Content that you post or transmit, or you otherwise have the right to post, use, display, distribute and reproduce such User Submitted Content and to grant the rights granted herein; (ii) the User Submitted Content you supply is accurate and not misleading; and (iii) the use and posting of the User Submitted Content you supply does not violate these Terms of Service and will not violate any rights of or cause injury to any person or entity.
We use certain encryption technologies and other reasonable precautions to protect the privacy and security of your account and your User Submitted Content. However, you are ultimately responsible for protecting such information from disclosure to third parties, and you are not permitted to circumvent the use of any applicable encryption technologies or other security measures. You agree not to allow anyone to have access to your account, to notify us immediately of any unauthorized use of your account or account information or any other breach of security.
Our smartwatch communicates only with our servers and Apps and our servers communicate only with our smartwatch and Apps. We have also set up our system so that all smartwatch and cloud software updates are installed automatically, which means you’ll always have the latest and most secure software on your smartwatch. We encrypt the data on the smartwatch so that your data is secure even if you are on an open or insecure network. Each smartwatch has its own private key and certificate used to authenticate with the server. We use Amazon Web Services to store your data.
While we may implement reasonable precautions to protect your account data and other confidential information, we do not and cannot guarantee or warrant that information transmitted through the Internet and stored on servers is secure. You are always responsible for use of your account by yourself and others, including those persons that gained unauthorized access to your account through your acts and omissions.
You are prohibited from violating, or attempting to violate, the security of our Site or Services. Any such violations may result in criminal and/or civil penalties against you. We will investigate any alleged or suspected violations, and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations.
PRE-ORDERS AND ORDERS
You agree that we may immediately authorize and charge your credit card (or other approved facility) for payment for any pre-orders and/or orders of Products made by you. If you have a question about a transaction on your credit card statement, please use the “Contact Us” section of the Site to contact us. At this time, pre-Orders and Orders (following commercial launch) can only be shipped to countries that are not under embargo or require special export licenses or authorization from the United States.
We expect Pre-Orders to ship late 2015 (the “Pre-Order Ship Date”). In the event that the Pre- Order Ship Date is delayed, we will notify you of the anticipated new Pre-Order Ship Date. You may cancel any Pre-Order prior to the Pre-Order Ship Date and receive a refund, but after the Pre-Order Ship Date, the Pre-Order becomes non-refundable within 30 days. Products ordered following full commercial launch of such Products will be subject to our standard cancellation and return policy then in effect.
WITHOUT LIMITING ANY OTHER DISCLAIMERS CONTAINED HEREIN, YOU UNDERSTAND THAT ALL PRE-ORDER PRODUCTS ARE CURRENTLY UNDER DEVELOPMENT AND NUMEROUS TECHNICAL, FINANCIAL AND PRACTICAL OBSTACLES MAY AFFECT THE FINAL SPECIFICATIONS AND FUNCTIONALITY OF SUCH PRODUCTS, AS WELL AS OUR ABILITY TO DELIVER THEM TO YOU BY THE PRE-SALE ORDER SHIP DATE OR AT ALL. WE MAKE NO WARRANTIES OR REPRESENTATIONS, NOR WILL WE BE LIABLE OR RESPONSIBLE, WITH RESPECT TO ANY OF THE FOREGOING.
You acknowledge and agree that we may be required by applicable tax laws in certain jurisdictions to collect and pay applicable sales, use, value added, goods and services, withholding or other taxes, duties or charges (“Taxes”) in connection with the sale of Products and other Services. In addition, we may be required by applicable tax laws to file certain forms or other information for tax reporting purposes, and you agree to provide us with such forms or other information. Because tax laws vary significantly by jurisdiction and locality, you understand and agree that you are solely responsible for determining your own tax reporting requirements in consultation with your tax advisors. You acknowledge and agree that you are responsible for determining any Taxes to be collected or other obligations relating to Taxes with respect to all purchases of our Products and use of our Services.
In using our Site and Services, you must not (i) send or otherwise transmit to or through our Site or Services any unlawful, infringing, harmful, harassing, defamatory, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material or terms of any kind, (ii) violate any Applicable Laws, (iii) misrepresent your identity or affiliation in any way, (iv) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure, (v) use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Site, except for Internet search engines (e.g., Google) and non-commercial public archives that comply with our requirements, (vi) interfere with or attempt to interrupt the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means, or (vii) assist or permit any persons to engage in any of the activities described above.
All trademarks, service marks, logos and trade names on our Site or Services, whether registered or unregistered, are proprietary to us or to other persons or entities where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the owner thereof.
LINKS TO OTHER WEBSITES
For your convenience, our Site may contain links to other websites. If you use these links, you will leave our Site. We are not responsible for the availability or content of these other websites or for any viruses or other damaging elements encountered in linking to a third-party website, whether or not we are affiliated with the owners of, or use the services of, such websites. In addition, providing links to these websites should not be interpreted as endorsement or approval by us of the organizations sponsoring such third-party websites or their products or services.
TERMINATION AND ACCOUNT CANCELLATION
At any time, we may, in our discretion and without liability to you, with or without cause or prior notice, terminate your access to our Site and Services and deactivate or cancel your account. Upon any such termination, deactivation or cancellation, we will pay you within a commercially reasonable time any amounts that we determine are properly owed to you, and you will remain liable for all amounts due hereunder. You may cancel your account at any time by sending an email to email@example.com. Please note that, upon such termination, deactivation or cancellation, we do not have an obligation to delete or return to you any Content you have posted to our Site or Services.
We make no representation that Content available through our Site or Services are appropriate or available for use in jurisdictions outside of the United States. Those who choose to access our Site or Services from other jurisdictions do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to our Site or Services from jurisdictions where the Content of our Site or Service are illegal or penalized is prohibited.
IF YOU CHOOSE TO USE OUR SITE OR SERVICES, YOU DO SO AT YOUR SOLE RISK. OUR SITE AND SERVICES, AND ANY CONTENT IN CONNECTION THEREWITH, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY REGARDING THE QUALITY OF OUR SITE OR SERVICES, OR ANY CONTENT IN CONNECTION THEREWITH OR THAT THE FOREGOING WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH OUR SITE OR SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE FOREGOING EXCLUSION MAY NOT APPLY TO YOU.
LIMITATIONS OF LIABILITY
UNDER NO CIRCUMSTANCES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, SHALL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, COMPENSATORY OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR PURCHASE OF PRODUCTS OR YOUR ACCESS OR USE OF (OR INABILITY TO ACCESS OR USE) THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES RELATED TO LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, SYSTEM DAMAGE OR FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ARE RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN IN PROVIDING OUR SITE AND SERVICES TO YOU AND THAT THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITIES SO THE FOREGOING EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
INDEMNITY AND RELEASE
To the extent permitted by applicable law, you agree to indemnify, defend and hold us and our directors, employees, agents, affiliates, insurers and contractors harmless from and against any liability, loss, injury, demand, action, cost, expense, or claim of any kind or character, including but not limited to attorney’s fees, arising out of or in connection with (i) your access to or use of (or inability to access or use) the Site and Services, (ii) your purchase of Products, (iii) your violation of these Terms of Service, (iv) your User Submitted Content, and (v) your interaction with other users of our Site and Services. We reserve 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.
If you use our Site or Services to connect with and/or enter into a contract with another user of our Site or Services, you hereby release and hold us harmless from any and all losses, damages, rights, claims, and actions of any kind, including but not limited to personal injury or property damage, either directly or indirectly related to or arising from your connecting or contracting with such other user.
Any notices or other communications by you or us must be in writing and given via email to, as applicable, your address stated in your account or our address stated on our Site. In addition, we may provide notice to you by posting to our Site or via our Services. All such notices shall be deemed to have been given when sent.
These Terms of Service shall be governed by the laws of California, except for its conflicts of laws principles. All disputes, controversies or claims which arise out of or relate in any way to these Terms of Service shall be finally resolved by arbitration held in San Jose, California and conducted by a single arbitrator under the JAMS Streamlined Rules and in accordance with the Consumer Arbitration Minimum Standards as may be amended from time to time. The arbitrator will have no authority to award any damages that are excluded by these Term of Service. Any award by the arbitrator may be enforced in any court having jurisdiction. Each party expressly agrees that any other party may seek injunctive relief by a court pending an award in arbitration and shall not, by doing so, be held to have infringed the powers of the arbitrator or breached its agreement to arbitrate. In the event of any action to enforce the terms of these Terms of Service, the prevailing party in such action shall be entitled to such party’s reasonable costs and expenses of enforcement including, without limitation, reasonable attorneys’ fees. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
You may not assign or delegate your rights or obligations under these Terms of Service, by operation of law or otherwise, to any third party without our prior written consent. Subject to the foregoing, these Terms of Service will be binding upon and inure to the benefit of the parties hereto and their respective successors, permitted assigns and legal representatives.
Our failure to enforce at any time a provision of these Terms of Service or our other rights herein will not be considered to be a present or future waiver of such provision or right and will not in any way affect our ability to enforce each and every such provision and right thereafter. If any provision of these Terms of Service is held invalid or unenforceable at law, such provision will be deemed stricken from these Terms of Service and the remaining provisions of these Terms of Service will continue in effect and be valid and enforceable to the fullest extent permitted by law.
These Terms of Service represent the entire agreement between the parties concerning the subject matter hereof and supersede any and all prior understandings, agreements or representations by or among the parties, whether written or oral, which may relate to the subject matter hereof.
EFFECTIVE: DEC 1, 2014