Terms and
Conditions
Last Modified: September 9, 2024
These Terms and
Conditions (“Terms” or "Agreement") constitute a legal agreement
between you and Tomofun Co. Ltd. and its subsidiaries and affiliated companies
(collectively, "Tomofun" or “we” or “us” or “our”), the owner,
operator and developer of the Furbo website available at www.Furbo.com and all
associated sites linked to www.Furbo.com (the
“Sites”), any mobile applications that may be downloaded on your device to
access our services (the “Mobile Apps”), any Furbo hardware products (the
“Hardware Products”), Furbo Dog Nanny, or other digital goods and services
(“Subscription Services”). The term “Services” or “Tomofun Services” will
collectively refer to the Tomofun Sites, Mobile Apps, Hardware Products and
Subscription Services
IF YOU RESIDE
WITHIN THE UNITED STATES OF AMERICA OR CANADA, THIS AGREEMENT IS SUBJECT TO
BINDING ARBITRATION AND WAIVER OF CLASS ACTION AND JURY RIGHTS. PLEASE SEE THE
DISPUTE RESOLUTION SECTION OF THIS AGREEMENT FOR MORE INFORMATION AND OPT-OUT
INSTRUCTIONS.
Please read this
Agreement carefully before accessing, using or registering for the Services.
Any person or entity accessing, using, or registering for any Services provided
by Tomofun (“Customer” or “you”) agrees to be bound or to bind the entity they
represent by the terms set forth in this Agreement. All rights not expressly
granted herein are reserved by Tomofun. You represent and warrant that you have
the right, authority and capacity to accept and agree to this Agreement on
behalf of yourself or the entity that you represent.
Your use, access
or registration to the Services is also governed by our Privacy Policy,
incorporated herein by reference. Please review the Privacy Policy to
understand how we collect, use, disclose and protect your personal
information.
IF YOU DO NOT
AGREE TO THE TERMS, PLEASE DO NOT ACCESS, USE, OR REGISTER FOR ANY SERVICES.
Subject to the
applicable law, Tomofun reserves the right to change or modify this Agreement
at any time by updating this page. If we make a material change to this
Agreement, we will provide you with notice on our Services or to the email
address we have on file. By continuing to use the Service after those changes
become effective, you agree to be bound by the revised Agreement. To find out
when we last updated this Agreement, please refer to the date listed after
“Last Modified” at the top of this Agreement.
You understand
that we are always improving and working on our Services, which means our
Services may change over time. We may modify, suspend or discontinue any part
of the Services, or introduce new features or restrictions on the part or all
of the Services. We also reserve the right to remove any Content (defined
below), features, or pages for any reason, in our sole discretion, and without
notice to you. You agree that we are not liable to you or any third party for
any modification, suspension or discontinuance of the Services or any part
thereof.
TOMOFUN SERVICES
DO NOT PROVIDE ANY OTHER
EMERGENCY SERVICES. IF YOU ARE EXPERIENCING AN EMERGENCY, IMMEDIATELY CONTACT
911 IF YOU ARE IN THE UNITED STATES, 999 IF YOU ARE IN THE UNITED KINGDOM, 112
IF YOU ARE IN AUSTRALIA, 000 IF YOU ARE IN GERMANY, THE POLICE DEPARTMENT, FIRE
DEPARTMENT, NEAREST HOSPITAL OR OTHER EMERGENCY SERVICE. PLEASE DO NOT CONTACT
TOMOFUN’S CUSTOMER SERVICE OR CUSTOMER CARE TEAM FOR ANY EMERGENCIES.
You agree and
understand that Tomofun’s Services are not an emergency service, dispatch
center, or other emergency-type service. We cannot assist you with any
emergencies you or someone else may be experiencing while using our Services.
Our Service is intended to be accessed and used for non-time-critical
information and non-emergency purposes.
We are excited
to have you become a Customer! When you register for an account with our
Services, you become the “Account Owner.” As an Account Owner, you can
authorize other individuals to access your account (the “Authorized Users”).
You should only
invite individuals you trust to become Authorized Users because Authorized
Users have access to the personal information available in your account (e.g.,
account profile, video history settings, and more) and they can also modify or change
your account information and settings (such as turning your camera on or off,
or modifying your Smart Alerts or notifications). In addition, Authorized Users
can invite or enable other Authorized Users to access and use your account.
Tomofun does not take any responsibility for the actions of Authorized Users.
To be eligible
to access, use or register with our Services, you represent and warrant:
● You have legal capacity to form a binding
contract with Tomofun;
● You are 18 years or older. Authorized Users of
the account under the age of 18 must have parental or legal guardian consent to
access and use the Services and can only use the Services under the supervision
of their parent or legal guardian;
● As an Account Owner, you agree to be fully
responsible for all actions taken on your account, including any actions taken
by Authorized Users;
● You will provide us with information that is
accurate, complete, and current at all times;
● You will be responsible for safeguarding the
password that you use to access the Service and for any activities or actions
under your password, whether your password is with our Service or a third-party
service;
● You will notify us immediately upon becoming
aware of any breach of security or unauthorized use of your account;
● Your use and access of the Services will not
violate any applicable laws or regulations, such as embargoes or export control
laws and regulations;
● You understand and acknowledge that the sole
purpose of our Service is to observe and record pets and in no event human
behavior. You will not use our Service to spy on, observe or monitor the
behavior of other people nor will you make audio or video recordings for this
purpose; and,
●
You will
not use as a username the name of another person or entity that you do not have
the right to use, or the name of a person or entity with the intent to
impersonate that person or entity.
Tomofun is not
liable for any loss or damage arising or resulting from your failure or the
failure of your Authorized Users to comply with the above requirements. In
addition, failure to meet any of the eligibility requirements listed above
constitutes a breach of this Agreement, which may result in immediate
termination of your account on our Service.
While the
Tomofun Services are intended for your personal enjoyment and household use,
there may be laws or regulations where you live that impose certain
responsibilities on you and your use of our Services. For instance, there may
be data protection and security laws that apply to your use of the Services. As
an Account Owner or Authorized User, you control the data you collect via our
Services.
You agree that
it is not Tomofun’s responsibility to ensure your use of the Services comply
with applicable laws, including, but not limited to:
If your use or
access of our Services does not comply with applicable laws, you are prohibited
from using or accessing our Services. We may terminate or suspend your use or
access to our Services, in our sole discretion, for any reason, at any time,
and without notice. We have the sole right to determine whether you are in
breach of any terms contained in this Agreement.
All right, title
and interest in the Services and Content provided through the Services are
owned by Tomofun, its licensors, or designated third parties. We provide you
with a limited, non-transferable, non-exclusive right (without the right to
sub-license) to access and use the Services for your personal, non-commercial
use.
The rights
granted to you in this Agreement are subject to the following restrictions:
Your failure to
abide by the foregoing may result in the termination or suspension of your use
or access to our Services, in our sole discretion, for any reason, at any time,
and without notice. Subject to the applicable law, we may have the sole right
to determine whether you are in breach of any terms contained in this
Agreement.
Our Service may
allow you to publicly share and otherwise make available certain information,
graphics, videos, or other material ("Content"), including, without
limitation, Content captured through or in connection with your use of the
Services. Such Content may also include location information or other metadata.
You are solely responsible for the Content that you publicly upload, transmit,
share or otherwise disseminate on and through the Services, including its
legality, reliability, and appropriateness. Tomofun reserves the right, but is
not obligated, to remove any Content from the Services at any time in its sole
discretion.
You hereby agree
you will not use, reproduce, modify, upload, publish, transmit, distribute,
display, or otherwise exploit for any purposes whatsoever any Content that (i)
is not owned by you without the express prior written permission of the
respective owners of the Content, and (ii) in any way that violates any third
party right(s) in the Content.
Furthermore, you
represent and warrant that:
You hereby grant
Tomofun and its licensees a non-exclusive, irrevocable, fully paid and
royalty-free, perpetual, worldwide, sub-licensable and transferable right to
access, re-use, distribute, store, delete, translate, copy, modify, display,
sell, create derivative works from and otherwise exploit such Content for any
purpose and in any media formats in any media channels without compensation to
you or any other person or entity. You also hereby grant to each user of the
Services a non-exclusive license to access, use and/or share your Content
through the Services as permitted through the functionality of the Services and
this Agreement.
Tomofun does not
claim ownership of your intellectual property rights in the Content or any
recordings or data you provide to us via the use of our Services (the “Private
Content”). However, you agree to give Tomofun the right to access, use,
preserve and/or disclose your Content and Private Content, without compensation
to you or any obligation to you, for the following purposes, as limited by the
Privacy Policy:
Tomofun owns and
retains all proprietary rights to the Services, its trademarks, copyrights, trade secrets, and/or
patents, whether registered or not, and all other trademarks and trade names
are the property of their respective owners. The Services are licensed to you
on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely
to be used in connection with the Services for your private, personal,
non-commercial use, subject to all the terms and conditions of this Agreement
as they are applicable to the Services.
Nothing on or in
the Services shall be construed as conferring any other license to you or your
Authorized Users under any intellectual property right, including any right in
the nature of trademark, patent, trade secret or copyright, of Tomofun or any
third party, whether by estoppel, implication or otherwise. Except for any
information that is in the public domain, you are not authorized to reproduce,
transmit or distribute the trademarks, copyrights, proprietary information or
intellectual property of Tomofun. Tomofun, and its affiliates and licensors and
suppliers, reserve all rights not granted in this Agreement.
Tomofun respects
others’ intellectual property rights and reserves the right to delete or
disable Content alleged to be infringing the Digital Millennium Copyright Act
(“DMCA”) and to suspend or terminate the accounts of alleged infringers. If you
believe someone is infringing on your or another’s copyrights, please contact
us at support@furbo.com.
You may submit
comments, suggestions or ideas about our Services, including ways in which you
would improve or change the Services (the “Feedback”). You agree that your
Feedback is provided to us on a NON-CONFIDENTIAL BASIS, is voluntary,
gratuitous, unsolicited and without restriction, and Tomofun does not have any
fiduciary duty or other duty as a result of receiving your Feedback. You hereby
grant Tomofun the unlimited, perpetual right to use, copy, modify, publish,
redistribute, create derivative works from such Feedback or otherwise
disseminate your Feedback for any purpose and in any way without compensation
or any obligation to you or any other third parties. Tomofun does not waive any
rights to use similar or related feedback or ideas known to Tomofun, developed
by Tomofun’s employees, or obtained from other sources.
If you wish to
purchase any product or service made available through the Services
("Purchase"), you may be asked to supply certain information relevant
to your Purchase including, without limitation, your credit card number, the
expiration date of your credit card, your billing address, and your shipping
information. We may require additional information from you prior to accepting
or processing your order.
You represent
and warrant that: (i) you have the legal right to use any credit card(s) or
other payment method(s) in connection with any Purchase; and that (ii) the
information you supply to us is true, correct and complete.
By submitting
such information, you grant us the right to use or provide the information to
third parties for purposes of facilitating the completion of Purchases or
providing our Services to you.
We reserve the
right to refuse or cancel your order at any time for certain reasons including
but not limited to: product or service availability; we suspect you are
purchasing products for resale without written permission from us; errors in
the description or price of the product or service; error in your order or
other reasons; or if fraud or an unauthorized or illegal transaction is
suspected. Furthermore, we reserve the right to collect any rejection or
insufficient funds fee and to process any such payment by the payment method
you have submitted to us. Your charges may be payable in advance, in arrears,
or as otherwise described when you initially selected to use the paid Services.
a.
In order
to enjoy certain advanced features of our Services, including the ability to
store video and/or audio footage or photographs in cloud storage, download them
to your mobile device, or receive certain types of enhanced notifications, you
must activate the Subscription Services, such as the Furbo Dog Nanny®. If you sign up for one of our special
offer such as “Subscribe and Save plans” or “Premium Safety Package plan”, you
have agreed to a minimum subscription of three or more continuous months
(“Minimum Commitment”). We will
charge the subscription fee upfront for a minimum of three or more months
depending on the purchase plan you choose. You must first complete the
activation process once you receive the Hardware Product in order to enjoy the
Subscription Services. You will not
be able to access or use any feature of the Hardware Product without
activation. After the Minimum
Commitment, your Subscription Services will continue monthly, annually or
biennially, based on the plan you selected. Your Subscription Term will
automatically renew until terminated by you or us. After you terminate the
Subscription Services, or if you purchase the Camera Only without the
Subscription Services, you will only be able to access a real-time stream of
the area where the Hardware Product is located for the limited purpose of
recording. You will not be able to
access any past recordings, nor can you activate the Subscription Services
retroactively. If you or an Authorized User delete any data collected as a
result of the Subscription Services, the data will be permanently deleted and
no longer available to you. Please note that Tomofun may charge an additional
fee for the use of some or all of the Subscription Services. We reserve the
right to modify, suspend, terminate, or change the Subscription Services at any
time.
b.
Subscription. You can find a description of our Subscription Services
on our website ( https://help.furbo.com/hc/en-us ), and we will explain which Subscription Service
options are available to you when you sign up for the Furbo Dog Nanny or other
services we offer. Your Subscription Services will continue month-to-month,
annually, or based on the other timescale subscription plan (the “Subscription
Term”) that you select, and will automatically renew until terminated. You will
be entitled to access the subscription-based Services you purchased for each
Subscription Term until such subscription is canceled. To change or discontinue
a Purchase, please go to
If you purchase
our hardware product through the special offer such as "Subscribe &
save", “Premium Safety Package” plan, or any other combination of hardware
and subscription services, you shall subscribe to our service according to the
selected purchase plan, the minimum subscription period is three months or more
(depends on the plan you chose). If the user does not subscribe for the minimum
required period, we reserve the right to block their access to the service
until they renew their subscription for the required period.
c.
Free Trial. Your Subscription Service may start with a trial period
to use the Subscription Service at no cost (“Free Trial”). The Free Trial
period of your Subscription Service lasts for one month, or as otherwise
specified during sign-up and is intended to allow new subscribers to try our
Subscription Service.
Free Trial eligibility is determined by
Tomofun at its sole discretion and we may limit eligibility or duration to
prevent Free Trial abuse. We reserve the right to revoke the Free Trial and put
your account on hold in the event that we determine that you are not eligible.
Members of households with an existing or recent Tomofun Subscription Services
are not eligible. We may use information such as device ID, method of payment
or an account email address used with an existing or recent Tomofun Subscription
Services to determine eligibility.
d.
Billing Cycle. The Subscription Services will be charged based on the
Subscription Term you select to your Payment Method on the calendar day
corresponding to the commencement of the paying portion of your Subscription
until your Subscription is cancelled. For example, if you sign up for a monthly
subscription on January 15, you will be charged again on February 15 for the
next month of the Subscription Services.
e.
Payment Methods. To use the Subscription Services you must provide one
or more Payment Methods. You can update your Payment Methods by going to the
"Account" page. Following any update, you authorize us to continue to
charge the applicable Payment Method(s). You authorize us to charge any Payment
Method associated to your account in case your primary Payment Method is
declined or no longer available to us for payment of your Subscription
Services. You remain responsible for any uncollected amounts. If a payment is
not successfully settled, due to expiration, insufficient funds, or otherwise,
and you do not cancel your account, we may suspend your access to the
Subscription Services until we have successfully charged a valid Payment
Method. For some Payment Methods, the issuer may charge you certain fees, such
as foreign transaction fees or other fees relating to the processing of your
Payment Method. Check with your Payment Method service provider for details.
If you purchase any Hardware Products by
selecting the plan of "subscribe & save", “Premium Safety Package”
or , any other combination of hardware and subscription services, we will
charge you for at least the first three months or more, depending on the
purchase plan you choose at the time when you activate the hardware for the
first time.
f.
Cancellation. To cancel, go to the "Account" page on our website
It is your responsibility to backup any data,
software, or other materials you may have stored or preserved via your use of
the Subscription Services. If you cancel your Subscription Services you will
lose basic features of our Subscription Services and you will permanently lose
such data, software, or other materials as they will be deleted after your
Subscription Services end. Tomofun will not be responsible for any such damage
or loss.
g.
Changes to the Price and Subscription Terms. We reserve the right to change our
subscription plans or adjust pricing for our service or any components thereof
in any manner and at any time as we may determine in our sole and absolute
discretion. Except as otherwise expressly provided for in these Terms of Use,
any price changes or changes to your Subscription Services will take effect
following notice to you.
h.
Refunds for Subscription Services. Payments for Subscription Services are
nonrefundable and there are no refunds or credits for partially used periods, unless
required by the laws of the region where you reside. Following any
cancellation, however, you will continue to have access to the Subscription
Service through the end of your Subscription Term. You will not be eligible for
a prorated refund of your payment for Subscription Services.
If you are a
consumer residing within Canada, the European Economic Area (EEA), or the
United Kingdom (UK) you have the following right of withdrawal when entering
into a subscription service contract with us:
Right of Withdrawal
You have the right to withdraw from the contract within
14 days without giving any reason.
The withdrawal period will expire after 14 days from the
day you entered into the subscription contract.
To exercise the right of withdrawal, you must inform us
(INSERT COMPANY NAME, ADDRESS AND, WHERE AVAILABLE, TELEPHONE NO, FAX NO AND
EMAIL ADDRESS) of your decision to withdraw from the contract by an unequivocal
statement (e.g. a letter sent by post, fax or e-mail). You may use the attached
model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you
to send your communication concerning your exercise of the right of withdrawal
before the withdrawal period has expired.
Effects of Withdrawal
If you withdraw from the contract during the 14-day
period, we shall reimburse to you all payments received from you, including the
costs of delivery (with the exception of the supplementary costs resulting from
your choice of a type of delivery other than the least expensive type of
standard delivery offered by us), without undue delay and in any event not
later than 14 days from the day on which we are informed about your decision to
withdraw from this contract. We will carry out such reimbursement using the
same means of payment as you used for the initial transaction, unless you have
expressly agreed otherwise; in any event, you will not incur any fees as a
result of such reimbursement.
.
Model Withdrawal Form
(If you want to withdraw from the contract, please fill
out this form and send it back.)
a.
To: [INSERT
NAME, ADDRESS AND, WHERE AVAILABLE, FAX NO AND EMAIL ADDRESS OF COMPANY]
b.
I / we
(*) hereby give notice that I/we (*) withdraw from my / our (*) contract of
sale of the following goods (*) / for the provision of the following service
(*)
c.
Ordered
on (*) / received on (*),
d.
Name of
the consumer(s):
e.
Address
of the consumer(s):
f.
Signature
of the consumer (s) (only for notification on paper):
g.
Date:
(*) Delete
where inapplicable.
Please refer to
the Shipping, Returns &
Warranty Policy, which is incorporated herein
by reference, for information about shipping limitations, returns, and any
warranty attached to the Hardware Product you have purchased.
Our Services may
be suspended temporarily or permanently without notice to you for security
purposes, maintenance or repair, system failures, or other similar
circumstances (collectively, “Service Interruptions”). You acknowledge and agree
that you are not entitled to a refund or rebate related to such Service
Interruptions. We do not offer a service level or uptime guarantee with our
Services.
Tomofun may, at
its sole discretion, phase out any old Furbo Hardware Products that can no longer
receive the required Software Updates in order to function properly and
securely. In the event of a phase
out, Tomofun will provide a reasonable period of time to impacted Authorized
Users and provide options to transition to new Hardware Products. After the phase out period, Tomofun will
no longer be able to provide support for the phased-out Hardware Products,
including but not limit to software updates, security patches, and customer
support.
Your access and
use of the Tomofun Services is intended to be non-time-critical. Tomofun does
not make any representations or warranties that use of the Services will
improve or affect your level of safety. While we intend to provide you with
reliable Services, you hereby acknowledge that the use of the Services is not
intended to be 100% reliable and it is not a substitute for a third-party
monitored emergency notification system.
Our Services may
experience interruptions or issues for various reasons, including a poor Wi-Fi
connection or your mobile carrier’s data and usage plan. We cannot and do not
guarantee that you will receive timely or accurate notifications through our
Services, to the extent you enable such features, nor that we will maintain and
store your data. You are solely responsible for maintaining and storing any
backups of video or audio recordings or photographs outside of the Services to
avoid any loss of such data.
You acknowledge
that the availability of our Services is dependent on your Internet Service
Provider (“ISP”), your mobile device operator or carrier (“Mobile Carrier”),
and your computer, mobile device, home wiring, Wi-Fi, Bluetooth connection or
other relevant equipment. You are responsible for ensuring you comply with your
ISP’s and Mobile Carrier’s applicable terms and agreements, including any data
and usage terms.
To access or use
the Services, you must have:
●
An
account;
●
A
wireless device that is supported by the Services, such as a mobile smartphone
or tablet;
●
A
functioning and always available Wi-Fi network or broadband Internet connection
in your home; and,
●
Any other
specifications provided with the specific Services you Purchase.
You acknowledge
that the Services may not function if you are not able to meet the requirements
listed above.
Tomofun will
provide you with installation instructions when you Purchase our Services.
However, it is your responsibility to ensure you are following the instructions
correctly. YOU MAY EXPERIENCE TECHNICAL OR PERFORMANCE ISSUES WITH OUR SERVICES
IF THE SERVICES ARE NOT PROPERLY INSTALLED. ALWAYS TEST THE SERVICES AT
INSTALLATION AND REGULARLY THEREAFTER TO ENSURE THEIR PROPER FUNCTIONING. PART
OF THE SERVICES MAY REQUIRE REPLACEMENT FOR THEIR PROPER FUNCTION, SUCH AS
TREATS FOR THE FURBO DOG CAMERA OR ADAPTER REPLACEMENT. IF YOU ARE EXPERIENCING
TECHNICAL DIFFICULTIES, PLEASE REFER TO OUR FURBO HELP CENTER OR CONTACT US AT SUPPORT@FURBO.COM.
We are
constantly updating our offerings of products and services on the Service. The
products or services available on our Service may be mispriced, described
inaccurately, or unavailable, and we may experience delays in updating
information on the Service and in our advertising on other web sites,
applications or platforms.
We cannot and do
not guarantee the accuracy or completeness of any information, including
prices, product images, specifications, availability, and services. We reserve
the right to change or update information and to correct errors, inaccuracies,
or omissions at any time without prior notice (including after an order has
been submitted).
We may, from
time to time, develop updates, patches, bug fixes, upgrades or other
modifications to the Services (the “Software Updates”). Software Updates may
improve or optimize the Services, or make changes to the Services in our sole
discretion. You hereby agree that Tomofun may automatically install the
Software Updates without notice or additional consent from you, except as
required by applicable law or in accordance with our Privacy Policy. If you do
not want such Software Updates, you may terminate your Services with us.
Our Services may
contain links or access to third-party web sites or services that are not owned
or controlled by Tomofun (“Third Party Services”). A description or link to
Third Party Services does not imply an endorsement by Tomofun of the Third
Party Services.
Tomofun has no
control over, and assumes no responsibility for, the content, privacy policies,
or practices of any Third Party Services. You further acknowledge and agree
that Tomofun shall not be responsible or liable, directly or indirectly, for
any damage or loss caused or alleged to be caused by or in connection with use
of or reliance on any such content, goods or services available on or through
any such Third Party Services.
You may be
required to agree to additional Third Party Services terms and conditions,
warranties, or other policies. This Agreement or any other Tomofun agreements
with you do not apply to your access or use of Third Party Services. We
strongly advise you to read the terms and conditions and privacy policies of
any Third Party Services that you access or use.
Any contests,
sweepstakes or other promotions (collectively, "Promotions") made
available through the Services may be governed by rules that are separate from
this Agreement. If you participate in any Promotions, please review the
applicable rules as well as our Privacy Policy. If the rules for a Promotion
conflict with this Agreement, the Promotion rules shall apply.
Tomofun has
certain technical, administrative, and physical security measures in place to
protect your personal information. However, Tomofun’s Services are provided
over the Internet and we cannot guarantee that your personal information will
not be accessed, used or disclosed by unauthorized third parties. In addition,
you are also responsible for the security of your personal information on our
Services. You should ensure that any wireless Internet connections you use for
the Product Hardware, Mobile App or other Services are secure, and only share
your account information with third parties you trust. If you believe that the
security of your personal information on our Services has been compromised,
please contact us immediately at support@furbo.com.
TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD
HARMLESS TOMOFUN, ITS OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUPPLIERS, OR
LICENSEES, FOR ANY LOSSES, DAMAGES, COSTS, LIABILITIES AND EXPENSES (INCLUDING,
BUT NOT LIMITED TO, COURT COSTS, LEGAL FEES, AWARDS OR SETTLEMENTS) RELATING TO
OR ARISING OUT OF YOUR OR YOUR AUTHORIZED USERS’ USE OF THE SERVICES, AND
INCLUDING ANY BREACH BY YOU OF THE TERMS CONTAINED IN THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THIS INDEMNIFICATION SHALL NOT APPLY TO CLAIMS
BASED ON TOMOFUN’S OWN WILLFUL, WANTON, OR INTENTIONAL MISCONDUCT BY TOMOFUN.
TOMOFUN PROVIDES
THE SERVICES ON AN "AS IS" BASIS AND DOES NOT MAKE ANY WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, NOR DO WE IN ANY WAY
GUARANTEE THE QUALITY, ACCURACY, DATA CONTENT, ARTISTIC WORTH OR LEGALITY OF
INFORMATION, CONTENT, GOODS OR SERVICES THAT ARE TRANSFERRED, RECEIVED,
PURCHASED OR OTHERWISE MADE AVAILABLE OR OBTAINED BY WAY OF THIS WEBSITE OR THE
SERVICES. TOMOFUN DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS
BE AVAILABLE, BE SECURE, BE UNINTERRUPTED, BE ERROR FREE, MEET YOUR
REQUIREMENTS, BE FREE OF ANY DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS, OR
THAT DEFECTS WILL BE CORRECTED.
YOU ACCEPT AND AGREE THAT THE OUTPUT FROM YOUR USE OF OUR SERVICES IS
FOR GENERAL INFORMATION PURPOSES ONLY AND HAS NOT BEEN INDEPENDENTLY VERIFIED
BY A VETERINARIAN OR HUMAN. ANY
OUTPUT FROM OUR SERVICES DOES NOT CONSTITUTE MEDICAL OR ANY OTHER FORM OF
PROFESSIONAL ADVICE OR GUIDANCE.
YOU WILL NOT RELY ON THE OUTPUT AS A SOLE SOURCE OF TRUTH OR FACT, OR AS
A SUBSTITUTE FOR PROFESSIONAL ADVICE.
IT IS YOUR RESPONSIBILITY TO CONFIRM THAT THE OUTPUT GENERATED BY OUR
SERVICES IS CORRECT AND SUITABLE FOR YOUR INTENDED PURPOSE. SOME OR ALL OF THE
EXCLUSIONS ABOVE MAY NOT APPLY TO YOU DEPENDING ON THE JURISDICTION IN WHICH
YOU RESIDE.
TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER
DISCLAIMERS IN THIS AGREEMENT, IN NO EVENT SHALL TOMOFUN, ITS OFFICERS,
EMPLOYEES, PARTNERS, AGENTS, OR
AFFILIATES, BE (A) LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF
PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES ARISING FROM OR
RELATING TO THE SERVICES, WHETHER OR NOT WE HAVE BEEN INFORMED OF OR SHOULD
HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH
HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND (B) HAVE TOTAL
CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS
OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (A) ABOVE,
ARISING FROM OR RELATED TO THE SERVICES, WHETHER IN CONTRACT OR TORT OR
OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE AMOUNT ACTUALLY
PAID BY YOU TO TOMOFUN OR AN AUTHORIZED TOMOFUN RESELLER FOR THE SERVICES AT
ISSUE WITHIN THE PRIOR TWELVE (12) MONTHS (IF ANY). TOMOFUN DISCLAIMS ALL
LIABILITY OF ANY KIND OF TOMOFUN’S LICENSORS AND SUPPLIERS.
TOMOFUN
DISCLAIMS ALL LIABILITY ARISING FROM OR RELATING TO ANY CONTENT OR PRIVATE
CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT
OR PRIVATE CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN
ANY CONTENT OR PRIVATE CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN
CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT OR PRIVATE CONTENT POSTED,
EMAILED, ACCESSED, TRANSMITTED, DISSEMINATED OR OTHERWISE MADE AVAILABLE VIA
THE SERVICES.
THIS SECTION
SHALL APPLY EVEN IF TOMOFUN IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH
OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF
ANY KIND OR DEGREE, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, STRICT
PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY OF LIABILITY.
FOR THOSE
JURISDICTIONS THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE,
THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON,
INTENTIONAL, RECKLESS MISCONDUCT, OR GROSS NEGLIGENCE OF TOMOFUN.
The following
applies only to those users that reside in the United States of America or
Canada:
You understand
and agree that any dispute, claim, or controversy arising under or in
connection with this Agreement, including your use and access to the Services
or any other content, including, but not limited to, claims as to whether any
services rendered by Tomofun or persons employed or engaged by Tomofun were
unnecessary or unauthorized or were improperly, negligently, or incompetently
rendered, shall be finally and exclusively resolved by binding arbitration
under the American Arbitration Association’s ("AAA") Commercial
Arbitration Rules and Mediation Procedures and Consumer-Related Disputes
Supplementary Procedures, and not by a lawsuit or resort to court process, except
as California law provides for judicial review of arbitration proceedings. Each
party retains the right to seek injunctive or other equitable relief in a court
of competent jurisdiction to prevent the actual or threatened infringement,
misappropriation or violation of a party’s copyrights, trademarks, trade
secrets, patents, or other intellectual property rights. It is your
responsibility to pay any AAA filing, administrative and arbitrator fees as set
forth in the AAA Rules.
YOU ACKNOWLEDGE
AND AGREE THAT BOTH PARTIES TO THIS AGREEMENT ARE GIVING UP THEIR
CONSTITUTIONAL RIGHT TO HAVE SUCH DISPUTE DECIDED IN A COURT OF LAW BEFORE A
JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS
ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY
OTHER PRESENTATIVE PROCEEDING.
The parties
further agree that the arbitrator, and not any federal, state or local court or
agency, shall have exclusive authority to resolve any dispute relating to the
interpretation, applicability, enforceability or formation of this agreement to
arbitrate. Any such controversy or claim shall be arbitrated on an individual
basis, unless both parties otherwise agree in writing. The arbitration shall be
held in San Francisco County, California, U.S.A.
You may cancel
this agreement to arbitrate by giving written notice to Tomofun within 30 days
of the date of your acceptance of this Agreement, or 30 days after Tomofun
makes material changes to this section of this Agreement. You should send your
cancellation notice to support@furbo.com
with the following information: (i) your name, (ii) your Tomofun account email
address; (iii) your mailing address; (iv) a statement of your wish not to
resolve disputes with Tomofun through arbitration. Your notice to opt-out of
arbitration only applies to this Agreement; if you previously entered into
other arbitration agreements with Tomofun or enter into other such agreements
in the future, your notification that you are opting out of the arbitration
terms of this Agreement shall not affect the other arbitration agreements
between you and Tomofun. Should you choose to withdraw from the arbitration
provision, all other provisions of this Agreement shall remain in full force
and effect.
If for any
reason a claim proceeds in court rather than arbitration, each party waives any
right to a jury trial. You agree to the personal jurisdiction by and venue in
the state and federal courts of San Francisco County in the State of California
or a United States District Court for the Northern District of California
located in San Francisco, California, and waive any objection to such
jurisdiction or venue.
This Agreement
constitutes the entire agreement among the parties relating to the subject
matter hereof, and supersedes all prior or contemporaneous communications and
proposals, whether electronic, oral or written between the parties with respect
to any Services provided by Tomofun. Notwithstanding the foregoing, you may
also be subject to additional terms and conditions, posted policies,
guidelines, or rules that may apply when you use the Services, use or access
the services, content or software of our affiliates, third parties or
collaborating partners, or our enter sweepstakes, promotions, or contests.
Any claim under
this Agreement must be brought within one (1) year after the cause of action
arises, or such claim or cause of action is barred; claims made under the
separate terms and conditions of purchase for goods or services are not subject
to this limitation.
Except to the
extent a claim or dispute is preempted by U.S. federal law, any claim or
dispute arising from or relating to this Agreement is governed by the laws of
the State of California, without regard to provisions of conflicts of law.
Unless prohibited under mandatory law, any lawsuit arising from or related
to this Agreement shall be brought exclusively before the Superior Court
of California, County of San Francisco, and you hereby agree to the
jurisdiction of any such court, unless such claim or dispute is required to be
arbitrated as set forth in an above section
The section
titles in this Agreement are for your convenience only and have no legal or
contractual effect.
You may not
assign or delegate any rights or obligations under this Agreement, and any such
attempts will be ineffective. Tomofun can freely assign or delegate all
rightsand obligations under this Agreement in part or in its entirety without
notice to you.
A failure to
exercise or enforce any right or provision of this Agreement shall not
constitute a waiver of such right or provision. If any provision of this
Agreement is found by a court of competent jurisdiction to be unlawful, void or
for any reason unenforceable then that provision shall be deemed severable from
this Agreement and shall not affect the validity and enforceability of any of
the remaining provisions.
We may provide
notifications to you as required or permitted by law via email to the primary
email address associated with the Account Owner, mobile notification, hard copy
or posting of such notice on our Services. Tomofun is not responsible for any
automatic filtering that you or your network provider may apply to such
notifications.
This Agreement
will remain in full force and effect as long as you continue to access or use
the Services, or until terminated in accordance with provisions of this
Agreement. We may terminate or suspend your use, access or account immediately,
without prior notice or liability, for any reason whatsoever, including without
limitation if you breach this Agreement.
If you transfer
the Services to another owner, your right to use our Services immediately
terminates with respect to the transferred Services. The new owner shall have
no right to use the Services as your Account Owner and will need to register as
a separate Account Owner and accept this Agreement.
Upon
termination, your right to use the Services will immediately cease. If you wish
to terminate your account, you may simply discontinue using the Service or
contact us at support@furbo.com.
If you have any
question