Terms of Service
Alohar Mobile Inc. Terms of Service
The Effective Date of This Agreement is June 5, 2013
PLEASE READ THESE TERMS CAREFULLY BEFORE COMMENCING YOUR USE OF THE SOFTWARE, APPLICATIONS, PRODUCTS OR SERVICES OFFERED BY ALOHAR MOBILE INC. THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THESE SOFTWARE, PRODUCTS AND SERVICES AND ALL RELATED FEATURES, CONTENT, AND APPLICATIONS INCLUDING BUT NOT LIMITED TO THE PLACEME APPLICATION, PLACEUS APPLICATION, AND SDK.
Introduction; Your Agreement To These Terms of Service.
The terms and conditions below (the "Terms") govern your access to and use of the Alohar Mobile Inc. websites, software, mobile applications (including but not limited to Placeme and PlaceUs), products, SDK and services (collectively, the "Service"), excluding any services provided to you by us under a separate written agreement.
These Terms constitute a legal agreement between you and us. You may terminate the prospective application of these Terms at any time by uninstalling the Software (if any), cancelling your account with us, and no longer accessing our Service. Some provisions of these Terms will nevertheless remain in effect after such termination.
a. A "User" is someone who accesses, browses, queries, or in any way uses the Service or Software. The terms "you" and "your" refer to you, as a user of the Service or Software.
b. "Content" means text, images, photos, audio, video, and all other forms of data (including location, smartphone sensor data, and User data) or communication. "Your Content" means Content that you or your device submits or transmits to or through the Service/Software, such as location, smartphone sensor data, or User information, any message, notes or digital media you post on or through the Service/Software, or information that you display as part of your account profile. "User Content" means Content that Users submit or transmit to or through the Service/Software, including Your Content. "Placeme and PlaceUs Content" means Content that we create and make available on the Service/Software. "Third Party Content" means Content that is made available on the Service or in the Software by parties other than us or our Users, such as data providers who license data to us for use on the Service or in the Software. "Service Content" means all of the Content that is made available on the Service or in the Software, including Your Content, User Content, Third Party Content, and Placeme and PlaceUs Content.
The Service is not for use by children under 13 years of age. Parents and legal guardians may not agree to these Terms of Service on their children's behalf. If Alohar becomes aware that a child under 13 has provided or attempted to provide Alohar with personal information, Alohar will use best efforts to remove the information permanently from Alohar's files. If you are between the age of 13 and 18 years old, you may use the Service but only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service. If you are a parent or legal guardian agreeing to these Terms of Service for the benefit of a child between 13 and 18 years old, be advised that you are fully responsible for his or her use of the Service and any and all legal liability that he or she may incur.
Further, you represent and warrant that you (a) have not previously been suspended by us or removed from the Service; (b) are not a direct competitor of us or our products and/or Services; (c) do not have more than one account for the Service at any given time; and (d) that you have full power and authority to enter into, accept, and be bound by these Terms and in doing so will not violate any other agreement to which you are a party.
BY CLICKING THE "I AGREE" OR "I ACCEPT" BUTTON OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SERVICES AND/OR SOFTWARE, YOU REPRESENT THAT YOU ARE AT LEAST 13 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE, AS SET FORTH ABOVE.
Modification Of These Terms.
We may modify these Terms from time to time. When changes are made, we will notify you by making the revised version of the Terms available on this webpage. You should revisit these Terms on a regular basis, as revised versions will be binding on you. Any such modification will be effective upon our posting of new Terms. You understand and agree that your continued access to or use of the Service or Software after any posted modification to the Terms indicates your acceptance of the modification.
When using the Placeme and/or the PlaceUs app, you need to create an account. When you create an account, you need to provide a valid email address and are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account . You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time for any or no reason. Alohar assumes no liability for closing your account for any or no reason. You will use your Placeme and/or PlaceUs account for your personal, non-commercial use only. In creating an account , you may not impersonate someone else, create an account for anyone other than yourself, provide an email address other than your own, or create multiple accounts.
Use Of The Service; Offensive Content.
We grant you permission to use the Service and Software subject to the restrictions in these Terms. In accessing or using the Service or Software, you may be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. We do not endorse or condone such Content. You therefore access and use the Service or Software at your own risk.
Restrictions On Use.
You agree that you will not, and will not assist or enable others to:
a. use the Service or Software to threaten, stalk, defraud, incite, harass, or advocate the harassment of another person, or otherwise interfere with another User's use of the Service or Software;
b. use the Service or Software to submit or transmit spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not;
c. use the Service or Software for promotional or commercial purposes, except as expressly allowed in writing by us;
d. use the Service or Software in a manner that may create a conflict of interest, such as trading reviews with other business owners or writing or soliciting shill reviews;
e. use the Service or Software for keyword spamming or to otherwise attempt to manipulate natural search results;
f. use the Service or Software to promote bigotry or discrimination against protected classes;
g. use the Service or Software to violate any third-party right, 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;
h. use the Service or Software to submit or transmit pornography or illegal content;
i. use the Service or Software to solicit personal information from minors or to harm or threaten to cause harm to minors (or persons of any age);
j. use the Service or Software in violation of these Terms or any applicable law;
k. modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Service, Software or Service Content, except as expressly authorized by us;
l. reverse engineer the Placeme or PlaceUs application, or any portion or all of the Service or Software;
m. remove or modify any copyright, trademark or other proprietary rights notice on the Service or Software or on any materials printed or copied off of the Service or Software;
n. record, process, or mine information about other Users, or attempt to do so;
o. use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index the Service, Software, or any Service Content;
p. access, retrieve or index the Service or Software for purposes of constructing or populating a database of locations, places, or business reviews;
q. reformat or frame any portion of the Service or Software;
r. take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our technology infrastructure;
s. attempt to gain unauthorized access to the Software, Service, User accounts, computer systems or networks connected to the Service or Software through hacking, password mining or any other means; use the Service, Software or any Service Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, "Viruses"); use any device, software or routine that interferes with the proper working of the Service, or otherwise attempt to interfere with the proper working of the Service or Software; make excessive traffic demands; use the Service or Software 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 Software, Service or Service Content; remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service or Software, features that prevent or restrict the use or copying of the Software or Service Content, or features that enforce limitations on the use of the Service or Software.
Responsibility For Your Content.
You alone are responsible for Your Content. You assume all risks associated with Your Content, including anyone's reliance on its accuracy, completeness or usefulness, or any disclosure by you of information in Your Content that makes you personally identifiable. 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 us.
You may expose yourself to liability if, for example, Your Content violates any third-party right, including but not limited to 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 false, intentionally misleading, or defamatory; 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.
Software License And Restrictions.
When you use the Service or Software we grant you a personal, limited, non-transferable, non-sublicenseable, non-exclusive and freely revocable copyright license, solely for your own personal, non-commercial purposes, to install the Software on one computer or device, and use the Software as it is delivered to you for the sole purpose of using the Service. These are your only rights with regard to the Software. You may not decode, reverse-translate, modify, reverse-engineer, decompile, disassemble, or otherwise reduce the Software into source code form. All communications between us and the Software and the content stored on our computer servers and in the Software includes our confidential information and you may not access, publish, transmit, display, create derivative works of, store, or otherwise exploit any such confidential information except as such functions are performed by the Software in the ordinary course of operation. You do not have the right to create derivative works of the Software. Nothing in these Terms shall be deemed to grant any right or license to you (expressly or by implication, estoppel, or otherwise), and no other license, authority to infringe, or immunity from infringement liability shall be deemed to arise or exist as a matter of law, under any copyrights, patents, or otherwise. The foregoing limitations shall in no way be deemed a derogation of the express rights granted under these Terms.
Patent Policy Statement.
We may own patent rights for inventions embodied in the Software or Service. We do not grant or intend to grant to you any right, title, or interest in or to any of our patents, and are granting you a license to use any and all such patents only to the extent necessary to use the Service and the Software in accordance with the Terms set forth herein.
Third Party Software.
The Software may include software that is licensed and/or available to you which is subject to third-party license agreements. To the extent these Terms may conflict with licenses or agreements governing your rights to that software, the agreement or license applicable to such third party software is covered by the terms of its applicable license or agreement.
Forums, Blogs, And Other Interactive Media Features.
Our Service or Software may include or provide one or more forums, blogs, or other interactive or social media features ("Forums") for Users to exchange information with each other and/or with us. If you use the Forums, in addition to any other terms we may require when you register or use the Forums or which are otherwise posted at or on the Forums, you agree to the following:
a. Restrictions. You agree not to use the Forums for any reason other than for lawful, non-commercial purposes. In addition, certain material on the Forums may be protected by United States and/or international copyright and trademark laws. Except as permitted through a "Share" function which we may provide on the Forums (or with our express written permission), you may not modify, copy, reproduce, republish, upload, post, transmit, or distribute in any way any material from the Forums, including any code or software.
b. Postings Not Necessarily the Opinion of Us. Some of the individuals posting to Forums may work for us; however, the opinions expressed at or in relation to the Forums are the personal opinions of the original authors, and do not necessarily reflect the views of Alohar Mobile Inc.
c. Postings. Although we may attempt to keep objectionable messages off the Service, Software and Forums, it is impossible for us to review all messages. All messages express the views of the author, and we are not responsible for any message or associated content.
d. Your Responsibilities. You take full responsibility for any and all messages and associated content you post to the Forums or exchange through the Forums. In addition, if you post any messages, upload files, input data, or engage in any other form of communication through the Forums (a "Posting"), you represent and warrant the following: (a) you own all right, title, and interest in and to the Posting, or you have been granted sufficient rights in and to the Posting to allow you to post such Posting without violating the rights of any other person or entity, (b) you will not post any messages or other materials that are obscene, vulgar, sexually-orientated, hateful, threatening, or which otherwise violate any laws, (c) you must not breach obligations of confidentiality that you owe to another party, either in posting or using a Posting, (d) any Postings you make to the Service, Software or Forums do not infringe any third party copyrights, trade marks, any other intellectual property rights, or any other applicable law, and (e) you will indemnify us and our affiliates, partners, licensors, service providers, content providers, and their and our directors, shareholders, officers, employees, contractors and agents against any and all claims, losses, liabilities, costs, damages and expenses incurred by us or them due to any breach by you of these Terms or your use of the Forums. For the purposes of this section, references to "your use" of the Forums shall be deemed to include any use by a third party where such third party accesses the Forums using your computer or account.
e. Additional Warnings. When using the Forums and/or viewing Postings, you need to be aware of the following issues:
i. The Forums may include contributions from various sources over which we have no control (including any content submitted by third party users).
ii. We do not pre-screen or exercise editorial control over Postings, and take no responsibility for such Postings.
iii. We reserve the right to edit or remove Postings at any time and in our sole discretion, including those that are in breach of these Terms or in breach of any obligation of confidentiality, infringe or are alleged to infringe the intellectual property rights of any third party, are defamatory, or otherwise are not relevant to the Forums, and we will not be liable in relation to the removal of, or failure to remove, any Postings.
f. Messages to Registered Users. Our Forums may allow you to send messages directly to other Forum users who have made their contact information available for receiving such messages. You agree to only send messages to other Forum users for the purpose of exchanging information for legal, non-commercial purposes, and any other use of the ability to send messages to other Forum users is strictly prohibited. Moreover, you shall not use contact information made available through the Forum for any of the following: (1) to send unsolicited commercial email (i.e., spam) or any other type of unsolicited commercial message, or (2) to send any message that is vulgar, sexually-orientated, hateful, threatening, or which otherwise violates any laws.
g. License. By adding a Posting to the Forum, you are granting us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to: (a) post, use, copy, sublicense, adapt, transmit, publicly perform or display any such Posting, (b) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play, host, communicate, make available and publish your Posting without restriction, and (c) sublicense to third parties the unrestricted right to exercise any of the foregoing rights granted with respect to the Posting. The foregoing grants shall include the right to exploit any ideas, concepts, intellectual property, or proprietary rights in such Posting, including but not limited to rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction, without us owing any monies to you whatsoever.
h. Our Employees. If you are an Alohar Mobile Inc. employee, you must also follow the company's Social Media Policy. This policy requires you to identify yourself as a representative of Alohar Mobile and to provide objective information only as otherwise provided by these Terms. You may not allude to future company directions, disclose confidential information, or mention planned product enhancements in any manner whatsoever.
i. Posting Guidelines. Our Forums may contain additional rules or posting guidelines. In such cases and in addition to the above, you agree to conform your Postings to any such additional rules or posting guidelines.
Notices of Copyright Infringement.
We prohibit Users from uploading, posting, or otherwise transmitting on or via the Service or Software any materials in violation of any other person's copyrights. Among other things, this means that we remove content that is reported to us pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512), also known as the DMCA.
Notifications of claimed copyright infringement should be sent to Alohar Mobile Inc.'s Designated Agent in writing at the following address:
Alohar Mobile Inc.
Attn. Legal Department, Copyright Agent
1032 Elwell Court, Suite #111
Palo Alto CA 94303
Telephone Number of Designated Agent: (650) 394-6254
Facsimile Number of Designated Agent: (224) 365-7737
Email Address of Designated Agent: email@example.com
To be effective, the Notification must include the following:
a. A physical or electronic signature of the owner whose exclusive right is allegedly infringed or a person authorized to act on his or her behalf;
b. Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
c. Identification of the material that is claimed to be infringing or is the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material on the Service or Software;
d. Information reasonably sufficient to permit us to contact the copyright owner or his/her authorized agent including an address, telephone number, and if available, an electronic mail address;
e. A statement that the copyright owner or authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
f. A statement that the information in the notification is accurate, and if submitted by the owner's authorized agent, a statement under penalty of perjury that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Within a commercially reasonable time after receipt of the written Notification containing the information as outlined in "a." through "f." above, we will remove or disable access to the material that is alleged to be infringing and forward the written notification to the alleged infringer and take reasonable steps to promptly notify the alleged infringer that we have removed or disabled access to the allegedly infringing material.
Counter Notification In Response To Claim Of Copyright Infringement.
If you believe that content posted to the Service was removed as allegedly infringing of copyright in error, you may file a Counter Notification. To be effective, a Counter Notification must be a written communication provided to our Designated Agent at the above-provided address that includes substantially the following:
a. A physical or electronic signature of the alleged infringer;
b. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
c. A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled;
d. The alleged infringer's name, address, email address, and telephone number, and a statement that the alleged infringer consents to the jurisdiction of the Federal District Court for where the alleged infringer's address is located, or if the alleged infringer is outside of the United States, for any judicial district in which we may be found, and that the alleged infringer will accept service of process from the person who provided the initial notification (the "Complaining Party") or an agent of such person.
After receipt of a Counter Notification containing the information as outlined in "a." through "d." above, we will provide the Complaining Party with a copy of the Counter Notification within a commercially reasonable time and inform the copyright owner or designated agent that we will replace the removed material or cease disabling access to it within ten (10) business days. If our designated agent has not received notice from the copyright owner or his/her designated agent within ten (10) business days that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity in relation to the allegedly infringing material, we will restore the allegedly infringing material.
We reserve the right to modify, update, or discontinue the Service or Software at our sole discretion, at any time, for any or no reason, and without notice or liability.
We reserve the right to exercise whatever lawful means we deem necessary to prevent unauthorized access to or use of the Service or Software, including, but not limited to, technological barriers, IP mapping, and contacting your Internet Service Provider (ISP) regarding such unauthorized use.
Links to Third Parties.
The Service or Software may include links to other websites or mobile applications which are not affiliated with Alohar (each, a "Third Party Service"). We do not control or endorse the contents of any such website, mobile application or any Third Party Service, and you agree that we are not responsible for the availability or contents of such Third Party Services.
By downloading the Software/Application or using the Service, you agree that you are solely responsible for complying with all United States export control regulations, including the Export Administration Regulations ("EAR"), and sanctions programs, including those administered by the United States Treasury Department's Office of Foreign Assets Controls ("OFAC"), and all other applicable international trade regulations. You agree that you will not download or use the Software without all required approvals in any proscribed destination (including Cuba, Iran, North Korea, Sudan, and Syria), on behalf of any proscribed entity or person, for any proscribed end use, or in any other manner contrary to these export regulations and sanctions programs. By downloading or using the Software, you represent, warrant and certify that you are not a proscribed end-user or utilizing this software for a proscribed end use under these regulations. This assurance shall survive the expiration or termination of this Agreement.
Suggestions and Improvements.
By sending us or posting to the Forums any ideas, suggestions, documents or proposals ("Feedback"), you agree that (1) your Feedback does not contain the confidential or proprietary information of third parties, (2) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (3) we may have something similar to the Feedback already under consideration or in development, and (4) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide right and license to use the Feedback in any manner whatsoever, including but not limited to using, modifying, publishing, distributing, creating derivative works of and sublicensing the Feedback or any portion thereof.
We may terminate or suspend your account or ability to use the Service or Software, in whole or in part, at our sole discretion, for any or no reason, and without notice or liability of any kind. For example, we may terminate or suspend your account or ability to use the Service or Software if you misuse the Service or Software. Any such termination or suspension could prevent you from accessing your account, the Service, the Software, Your Content, Service Content, or any other related information.
You may terminate the prospective application of these Terms at any time by closing your account, discontinuing your use of any and all parts of the Service and if you have installed our Software, by uninstalling it. If you close your account, we may continue to display Your Content where it affects or impacts other users.
We own the Software, Placeme and PlaceUs applications, Placeme and PlaceUs Content, and Service Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, computer code, products, the Software and other software, aggregate user review ratings, and all other elements and components of the Service excluding Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world associated with the Placeme Application, the PlaceUs Application, the Service Content, the Software and the Service, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not sell, license, sub-license, modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Service, Software, Placeme Application, PlaceUs Application, Placeme and PlaceUs Content, or Service 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 Software, the Service, the Placeme application, PlaceUs application, Placeme and PlaceUs Content and Service Content are retained by us.
Warranties, Disclaimers, and Limitations of Liability.
a. "As Is" and "As Available."
YOU EXPRESSLY AGREE THAT THE USE OF THE SOFTWARE, MOBILE APPLICATION, AND SERVICE ARE AT YOUR SOLE RISK. THE SOFTWARE, MOBILE APPLICATION, SERVICE, SITE AND ALL SITE CONTENT IS MADE AVAILABLE TO YOU ON AN "AS IS" BASIS. WE MAKE NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, AS TO (1) THE OPERATION AND FUNCTIONALITY OF THE SOFTWARE, MOBILE APPLICATION, SERVICE, OR SITE, (2) THE ACCURACY, INTEGRITY, COMPLETENESS, QUALITY, LEGALITY, USEFULNESS, SAFETY, AND INTELLECTUAL PROPERTY RIGHTS OF ANY OF THE SOFTWARE, MOBILE APPLICATION, SERVICE, SITE, OR SITE CONTENT, AND (3) THE PRODUCTS AND SERVICES ASSOCIATED WITH THE SOFTWARE, MOBILE APPLICATION, SERVICES, SITE OR SITE CONTENT. WE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
WE DISCLAIM ALL LIABILITY FOR ANY (1) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (2) LOSS OF PROFITS, OR (3) LOSS OF INFORMATION OR DATA.
c. Operation and Content; Harm To Computers.
WE FURTHER DISCLAIM ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR USE OF THE SOFTWARE, MOBILE APPLICATION, SERVICE, SITE AND SITE CONTENT. YOUR USE OF THE SOFTWARE, MOBILE APPLICATION, SERVICE, SITE AND SITE CONTENT IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO ANY LOSS OF DATA OR DAMAGE TO YOUR COMPUTER OR MOBILE DEVICE FROM VIRUSES THAT MAY BE DOWNLOADED TO YOUR COMPUTER OR DEVICE IN THE COURSE OF USING THE SOFTWARE, MOBILE APPLICATION, SERVICE, SITE OR SITE CONTENT.
d. Battery Life.
Your installation and/or use of the Software, Mobile Application, or Service may affect the life of the battery on certain computers or mobile devices. We make no representations or warranties that this will not occur, and you agree to be solely responsible for any loss or damage which arises or may arise out of any such effects on the life of your battery, including but not limited to data loss.
We make no representations or warranties regarding the accuracy of the information provided to you in connection with your use of the Software, Mobile Application, or Service, including but not limited to data relating to location, place names, geography, images, graphical icons, categories, dates, time and duration. You agree to be solely responsible for any loss or damage which arises or may arise out of any and all such inaccuracies, in the event and to the extent they should occur.
YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SOFTWARE, MOBILE APPLICATION, SERVICE, SITE OR SITE CONTENT OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SOFTWARE, MOBILE APPLICATION, SERVICE, AND SITE.
g. Limit Of Liability.
OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR FOR ANY OTHER REASON), WILL AT ALL TIMES BE LIMITED TO THE LESSER OF (I) $100 OR, (II) THE REVENUE ACTUALLY RECEIVED BY US DIRECTLY ATTRIBUTABLE TO YOUR USE OF THE SERVICE, MOBILE APPLICATION, SITE OR SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
h. Limitations of Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
You agree to indemnify, save, and hold Alohar, its affiliated entities, companies, contractors, officers, directors, shareholders, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, Mobile Application, websites or Software, any violation by you of this Agreement, or any breach of the representations, warranties, and covenants made by you herein. Alohar reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Alohar, and you agree to cooperate with Alohar's defense of these claims. Alohar will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
Disputes and Mandatory Arbitration Clause.
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU MAY BE REQUIRED TO SETTLE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE SUCH CLAIMS BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED.
a. The Federal Arbitration Act applies to these Terms. Except as otherwise set forth herein, a ny dispute, controversy or claim between us, regardless of whether the legal theory is based on these Terms, another common law theory, a statute or another ground, will be settled by neutral arbitrators before the American Arbitration Association ("AAA"). You can also bring any issues you may have to the attention of federal, state, or local government agencies and they can, if the law allows, seek relief against us on your behalf.
This arbitration provision is not mandatory in the event of claims below the applicable small claims limit in your jurisdiction. You or we may bring any such small claims matters outside of the arbitration setting, provided they are not brought in a court of general jurisdiction. This arbitration provision is also not mandatory to actions and claims by us to protect or redress the alleged misuse of our intellectual property, (including but not limited to those relating to alleged trademark infringement or theft of trade secrets) or in which we are seeking injunctive relief.
b. Forum Selection and Applicable Procedure. Unless you and us agree otherwise, the arbitration will take place in Santa Clara County, California. For claims over $10,000 the AAA's Wireless Industry Arbitration ("WIA") rules will apply. In large/complex cases under the WIA rules, the arbitrators must apply the Federal Rules of Evidence and a party may have the award reviewed by a panel of three new arbitrators. For claims of $10,000 or less, the complaining party can choose either the AAA's Supplementary Procedures for Consumer-Related Disputes or individual action in small claims court. You can obtain procedures, rules and fee information from the AAA or from us. Each of us may be required to exchange relevant evidence in advance. For claims of $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephonic hearing, or by an in-person hearing. To initiate arbitration under these Terms, contact the AAA, which will provide the necessary forms for you to submit. In the case of a conflict between any arbitration rules and these Terms, these Terms govern.
c. NO CLASS ARBITRATION. THESE TERMS DO NOT PERMIT CLASS ARBITRATIONS EVEN IF AAA OR WIA PROCEDURES OR RULES WOULD. The arbitrator may award monetary or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. IF THIS PROHIBITION ON CLASS ARBITRATIONS IS DEEMED UNENFORCEABLE UNDER APPLICABLE STATE LAW, THEN THE ENTIRE ARBITRATION CLAUSE SHALL BE DEEMED UNENFORCEABLE AND ANY CLASS CLAIMS SHALL BE BROUGHT AND ADJUDICATED IN A COURT OF COMPETENT JURISDICTION. IN NO CIRCUMSTANCE SHALL CLASS CLAIMS BE BROUGHT OR ADJUDICATED IN ARBITRATION.
d. Claim Notices. If you have or believe you have a claim or grievance against us that arises from or relates to the Service, the Software, the services, your account, any prior account you had with us, your application, or the enforceability of these Terms, before initiating, joining, or participating in any lawsuit, arbitration, or other legal proceeding, you shall give us: (1) a written notice of the claim (referred to below as a "Claim Notice"), at least 30 days before initiating any such proceeding, explaining in reasonable detail the nature of the claim and any supporting facts; and (2) a reasonable good faith opportunity and not less than 30 days' time to work with you to resolve the claim and thereby avoid the need for a lawsuit, arbitration, or other legal proceeding. Any Claim Notice directed to us shall be sent to:
Alohar Mobile Inc.
Attn: Legal Department
1032 Elwell Court, Suite #111
Palo Alto, California 94303
e. Use of Arbitration Award or Judgments in Subsequent Cases. An arbitration award and any judgment confirming it only applies to the arbitration in which it was awarded and cannot be used in any other case except to enforce the award itself.
a. U.S. Government Restricted Rights.
The Software, mobile application, and Service are provided with Restricted Rights. Federal, state and local governments agree to the terms and conditions of this commercial license.
b. No agency.
No agency, partnership, joint venture, or employment is created as a result of these Terms, and you do not have any authority of any kind to bind us in any respect whatsoever.
c . Notices.
We may provide you with notices, including those regarding changes to these Terms by email, regular mail or postings on the Service or in the Software or Mobile Application, or on our websites.
d . Entire Agreement
These Terms contain the entire agreement between you and us regarding the use of the Service, mobile application or Software, and supersede any prior agreement between you and us on this subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
e . Waiver.
Any failure on our part to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
f . Severability.
If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
g . Assignability.
These Terms are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
h . Survival.
Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration.
i . Governing Law; Jurisdiction.
Subject to and except to the extentwe have agreed otherwise in the provisions on arbitration above, t his Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that the federal and state courts residing in Santa Clara County, California will have exclusive jurisdiction over these Terms as well as any claim that might arise between you and us (including but not limited to those arising out of or relating to the Software, Mobile Application, and/or the Service) and you agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating or otherwise resolving any and all such claims.
Placeme, PlaceUs, PlaceRank and the Placeme and PlaceUs logos are trademarks of Alohar Mobile Inc. All other marks are owned by their respective owners.
Contact and Violations.
Please contact us with any questions regarding these Terms. Please report any violations of these Terms to us by writing to us at:
Alohar Mobile Inc.
Attn: Legal Department
1032 Elwell Court, Suite #111
Palo Alto, California 94303
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE AUTHORITY TO ACCEPT THESE TERMS, AND THAT YOU HAVE READ AND UNDERSTOOD THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE "I ACCEPT" OR "I AGREE" BUTTON AND/OR CONTINUING TO USE THE MOBILE APPLICATION, SERVICES AND/OR SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN.