Terms of Use
November 25, 2020
1. This Terms and Conditions document ("Agreement") is a binding agreement between you ("End User" or "you") and Vesync Corporation ("Company"). This Agreement governs your use of the Vesync Application, (including all related documentation, the "Application") and the use of the Application to make purchases of products from third party merchants ("Sellers"). The Application is licensed, not sold, to you. Vesync uses the Application to provide a marketplace service ("Service") allowing you to view the products of various Sellers and initiate purchases from them. Our Service also provides links to the websites of Sellers.
2. BY CLICKING THE "AGREE" BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS TO THE SAME EXTENT AS ANY WRITTEN AGREEMENT ON PAPER SIGNED BY YOU. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT DOWNLOAD THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
3. DISPUTES WILL BE ARBITRATED; NO CLASS ACTIONS. YOU ACKNOWLEDGE THAT THIS AGREEMENT, IN SECTION 22 BELOW, CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES BETWEEN YOU AND THE COMPANY. EXCEPT FOR LIMITED EXCEPTIONS, THE AGREEMENT TO ARBITRATE WILL REQUIRE THAT YOU AND THE COMPANY SUBMIT DISPUTES BETWEEN US TO BINDING AND FINAL ARBITRATION. YOU HAVE THE RIGHT TO OPT OUT OF THE AGREEMENT TO ARBITRATE. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE (a) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST THE COMPANY ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (b) YOU ARE WAIVING YOUR RIGHT TO PURSUE CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND YOU ARE WAIVING YOUR RIGHT TO HAVE A JURY TRIAL ON YOUR CLAIMS.
4. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Application for your personal, non-commercial use of the Service on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation, and
(b) Make archival copies as backups for your personal use.
5. License Restrictions. Licensee shall not:
(a) copy the Application, except as expressly permitted by this Agreement;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof except and only to the extent that applicable law expressly entitles you to do so notwithstanding this limitation as long as you provide notice to Company of such conduct and the purpose for it;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, except to the extent the Application is shared with family members under the terms of services of the application store from which the Application was obtained, provided the members of your family also agree to be bound by this Agreement; or
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
6. Reservation of Rights. The Application is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves, and you acknowledge that Company and its licensors own and shall retain, the entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
7. Geographic Restrictions. The Company is based in the State of California in the United States and provides the Application and Service for access and use only by persons located in the United States. You acknowledge that you may not be able to access or use the Application or Service outside of the United States and that access or use of them may not be legal by certain persons or in certain countries. If you access or use the Application or Service from outside the United States, you are responsible for compliance with local laws.
8. Transactions with Sellers. If you make a purchase using the Application, the actual contract for sale is directly between you and the Seller. Vesync is not the seller of any item you purchase.
(a) All purchases are subject to the terms and privacy policies of the applicable Sellers.
(b) You acknowledge and agree that Vesync has no control over and does not warrant, does not guarantee, and assumes no responsibility or liability for the conduct of any Seller; the availability, quality, safety, or legality of items provided by Sellers; the truth or accuracy of Sellers' content or listings; the ability of Sellers to sell items; or that a Seller can and will actually complete a transaction or, if requested, provide a refund.
(c) You hereby waive any claims, demands, and damages of every kind and nature, known or unknown, against Vesync or its affiliates or against any of their respective officers, directors, employees, or agents) arising out of or in any way connected with any dispute between you and any Seller.
9. Prices and Payment Terms.
(a) All prices posted on the Application are subject to change by the Seller without notice.
(b) Terms of payment are within the Seller’s sole discretion and payment must be received before an order is transmitted to the Seller. You represent and warrant that (i) the payment card information you supply is true, correct, and complete, (ii) you are duly authorized to use such payment card for the purchase, (iii) charges incurred by you will be honored by your payment card issuer, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
10. Shipments; Delivery; Title and Risk of Loss.
(a) The Seller will arrange for shipment of the products to you subject to its terms. You will pay all shipping and handling charges specified by the Seller during the ordering process.
(b) Vesync is not liable for any delays in shipment by the Seller.
11. Returns and Refunds. If you wish to return a purchase or obtain a refund, you agree to communicate with the Seller and arrange for a return or obtain a refund from the Seller (not Vesync).
12. Third-Party Materials. The Application displays, includes, and make available content from Sellers and other third parties (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. You access and use Third Party Materials entirely at your own risk and subject to such third parties' terms and conditions.
13. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or
(b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
14. Term and Termination.
(a) The term of Agreement commences when you download the Application and will continue in effect until terminated by you or Company as set forth in this Section 14.
(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
(c) Company may terminate this Agreement at any time without notice with our without cause for any reason whatsoever. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
(i) all rights granted to you under this Agreement will also terminate; and
(ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device.
(e) Termination will not limit any of Company's rights or remedies at law or in equity. Termination does not affect any transaction you entered into with any Seller before the effective date of termination.
15. Warranties.
(a) Application Warranty. Company warrants that the latest version of the Application will operate substantially in accordance published specifications from Company.
(b) Service Warranty. Company warrants that the Service will conform to the published specifications from Company.
16. Disclaimer of Warranties. EXCEPT AS WARRANTED IN SECTION 15, THE APPLICATION AND SERVICE ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION OR SERVICE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION OR SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
17. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR SERVICE FOR:
(a) BODILY INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (i) THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION AND (ii) $100 US DOLLARS.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
18. Indemnification. You agree to indemnify, defend, and hold Company and its officers, directors, employees, agents, affiliates, successors, and assigns harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including without limitation attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement.
19. Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable laws, regulations, and rules, and complete all required undertakings, including applicable export laws and obtaining any necessary export license or other governmental approval prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US. You represent and warrant that you are buying products or services from a Seller for your own personal use only, and not for resale or export.
20. Privacy. You acknowledge that when you download, install, use the Application, or make a purchase from a Seller through the Application and Service, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. All information we collect through or in connection with the Application or the Service is subject to our Privacy Policy, which is incorporated by reference herein. By downloading, installing, using, and providing information to or through the Application or by using the Service, you consent to all actions taken by us with respect to your information in compliance with our Privacy Policy.
21. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, hurricane, tsunami, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials, or Internet or telecommunication breakdowns or power outages.
22. Dispute Resolution and Agreement to Arbitrate.
(a) THIS SECTION IS AN “AGREEMENT TO ARBITRATE.” ANY DISPUTE, CLAIM, OR CONTROVERSY (collectively, “Claims”) WITH VESYNC ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY USE OF THE APPLICATION OR SERVICE, ANY PURCHASE TRANSACTION, OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, OR VALIDITY OF THIS AGREEMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED BY BINDING ARBITRATION, WHICH SHALL BE THE SOLE AND EXCLUSIVE FORUM FOR ADJUDICATING ANY SUCH CLAIMS. Arbitration will be administered by JAMS, Inc. pursuant to its Streamlined Arbitration Rules and Procedures (the “Rules”) by a single arbitrator appointed in accordance with the Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Santa Ana, California U.S.A. The language of the arbitration shall be English.
(b) Nothing in this Agreement shall be construed to preclude a party from bringing an individual action in small claims court or from seeking injunctive relief, damages, or other relief based on an infringement of a party’s intellectual property rights.
(c) To the maximum extent permitted by applicable law, each party agrees to waive the right to trial by jury, each party agrees that no arbitration or Claim under this Agreement shall be joined with any other arbitration or Claim, no class arbitration proceedings shall occur, and each party waives any rights to class arbitration.
(d) You are entitled to opt out of the terms of this Agreement to Arbitrate in Section 22 or any amendments to it by sending written notice to support@vesync.com within thirty days after first downloading a copy of the Application. Opting out of an amended version of this Agreement to Arbitrate does not affect your Agreement to Arbitrate disputes under this Section 22 before the date we receive your opt out notice. You must provide your name, email address, postal address, and any registered user name. Opting out of the Agreement to Arbitrate in this Section 22 shall not affect any other section of this Agreement.
(e) If any provision of this Agreement to Arbitrate is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
23. Assignment. You will not assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.
24. No Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person other than you.
25. Notices.
(a) To You. We may provide any notice to you under this Agreement by: (i) sending a message to the email address you provide or (ii) by posting to the Application. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us. To give us notice under this Agreement, you must contact us as follows: (i) by email to support@vesync.com; or (ii) by personal delivery, overnight courier or registered or certified mail to 1202 North Miller Street, Suite A, Anaheim, California 92806. We may update the email or address for notices to us by posting a notice on the Application. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
26. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
27. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application permitted under Section 22 shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in Santa Ana and Santa Ana County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
28. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and purchase transactions made using the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application, the Service, or any purchase transactions with a Seller.
29. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
30. Precedence Over Other Documents. In the event of a conflict between this Agreement and any applicable purchase order, sales acknowledgment, confirmation, or any other document issued by either party in connection with the purchase or sale of products or services using the Application, the terms of this Agreement shall govern. The foregoing sentence does not affect any terms of the applicable Seller.