Furbo and Furbo Dog Nanny …………………………………………………………………2
Furbo Rental and Subscription Service………………………………………………………20
Terms and
Conditions
Last
Modified: October 15, 2020
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”), and software, 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 Dog 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.
You may choose
to enable certain parts of our Services that allow you to store video and/or
audio footage or photographs in cloud storage for up to 24 hours, download them
to your mobile device, or to receive certain types of notifications, by
registering for our Subscription Services. If you do not register for the
Subscription Services, you will only be able to record for the limited purpose
of giving you access to a real-time stream of the area where the Hardware
Product is located; you will not be able to access any past recordings nor can
you enable 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 deleted and no longer available to you. Tomofun may charge an
additional fee for the use of some or all of the Subscription Services. We may modify, suspend, terminate, or change
the Subscription Services at any time.
a.
Subscription.
You can find a
description of our Subscription Services on our website, 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
b.
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.
If you purchase
furbo through the "Subscribe & save" plan , you will have a
14-day free subscription service. After 14 days, we will automatically charge
the payment according to the subsequent terms.
c.
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.
d.
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.
e.
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.
f.
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.
g.
Refunds. Payments for Subscription Services are nonrefundable and
there are no refunds or credits for partially used periods. 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. Notwithstanding
the foregoing, if you are a resident of Canada, you have 7 days from the date
you signed up to cancel your Subscription Service and receive a full refund.
Customers who reside in the European Economic Area or the United Kingdom,
please see section 13.
If you are a
consumer residing within 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, 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.
If you requested
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.
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, 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. 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
Terms of Rental
of Furbo Hardware Products and Subscription Services
The following Terms of Rental of Furbo Hardware Products and Subscription Services supplement, refer to terms defined in, and are incorporated by Tomofun’s General Terms and Conditions. Together these provisions explain and govern how you can use, change, or cancel your Rental and Subscription Services offered by Tomofun Co. Ltd. and its assignees, subsidiaries and affiliated companies (collectively “Tomofun”, “we”, “us” or “our”).
The subscription to Furbo As A Service (“FAAS”), MiniCam As A Service (“MAAS”), Furbo & MiniCam As A Service (“FMAAS”), or other digital services that we offer (individually or collectively as “Subscription Services” hereinafter) requires either the purchase or rental of a Furbo pet camera, or a Minicam (“Furbo Hardware Product”). You may not pledge, encumber, sub-rent, or loan the rental of Furbo Hardware Product (“Rental”) to any third party. Each Rental must have a corresponding Subscription Service, e.g. FAAS, MAAS, FMAAS, for the entire rental period. You must pay the minimum commitment and recurring charges for the Rental and Subscription Services based on the description and pricing of our Rental and Subscription Services when you sign up for, or upgrade your Subscription.
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.
Account Registration. You can complete a Rental request and register for the Subscription Services via the Furbo App or our website. All information that you provide must be accurate, including your name, address, credit, debit or charge card numbers and expiration dates, and any other payment information. You are responsible for keeping such information up-to-date and must provide changes promptly to your account page. Our use of your information is governed by our Privacy Policy. YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USERNAME OR PASSWORD.
Account Owner’s Responsibility. The Account Owner will be the person who registered for the Rental and Subscription Services on the Furbo Hardware Product that is connected to the App to which the Subscription Services are attached. As an Account Owner you may possess one or more Furbo Hardware Products. To subscribe to the Subscription Services, you will need at least one Furbo pet camera (2.0 version or later) and up to a maximum of three MiniCams. With each Furbo Hardware Product, other users in your household will have the same access to Furbo Hardware Product content that the Account Owner enjoys. The Account Owner is responsible for all activity and charges of all Authorized Users under his/her account.
Billing Cycles and Auto-Renewal. All Rental and Subscription Service charges recur monthly, annually, or biennially, or based on the other timescale subscription plan (the “Subscription Term”) basis until they are canceled in accordance with these Terms. By activating your Rental and Subscription Services, you acknowledge that your Rental and Subscription Services have recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Rental and Subscription Services by you or Tomofun. To change or terminate your Rental and Subscription Services, go to your account settings on your Mobile App and follow the instructions, or contact Customer Support at support@furbo.com.
Amount to be Charged. You, as the Account Owner, agree to pay the monthly / annual / biennial Rental and Subscription Services charges specified when you ordered the Rental and Subscription Services (plus any applicable taxes and other charges). If the amount to be charged varies from the amount you pre-authorized (other than due to the imposition of, or change in, applicable sales tax), you have the right to receive, and we will provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction, unless applicable law requires you to expressly consent to the change in price. Any agreement you have with your payment provider governs your use of your specified Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle. Your failure to terminate and/or continued use of your Rental and Subscription Services reaffirms that we are authorized to charge you for that Rental and Subscription Services. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you.
Payment Method. To rent a Furbo Hardware Product or use the Subscription Services you must provide one or more Payment Methods. You represent and warrant that you have the legal right to use all Payment Methods you provide to us for payment of monthly recurring charges. Your authorizations in this section also apply to our payment processors and any other companies who act as billing agents for us. You hereby authorize us to charge your specified Payment Method on a monthly / annual / biennial basis, in advance, for your Rental and Subscription Services charges, and/or to place a hold on your Payment Method with respect to any unpaid charges for your Rental and Subscription Services.
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 Rental and 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.
Billing Authorization for Unreturned Hardware Product Fee and Liquidated Damage. You authorize the issuer of your selected Payment Method to pay the specified amounts of “Unreturned Hardware Product Fee” or “Liquidated Damage” then owe as defined in Sections 4 and 5 below without requiring a signed receipt. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your Payment Method until such amounts are paid in full. You agree to provide updated payment information upon request and any time the information you previously provided is no longer valid. You acknowledge and agree that Tomofun will not have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of attempts to charge, and/or place holds on, your specified Payment Method as contemplated by these Terms.
Refunds. Payments
for Rental and Subscription Services are nonrefundable. Following any cancellation, however, you will
continue to have access to the Rental and Subscription Services through the end
of your Subscription Term. You will not be eligible for a prorated refund of
your payment.
Our Remedies if You Pay Late or Fail to Pay. You may be billed fees, charges, and
assessments related to late or non-payments if for any reason we do not receive
payment for full amounts billed to you by the due date.
i.
Fees Not Considered Interest or Penalties. We do not anticipate that you will fail to
pay on a timely basis, and we do not extend credit to customers. Any fees,
charges, and assessments due to late payment or nonpayment are liquidated
damages intended to be a reasonable estimate of our costs resulting from late
payments and non-payments. These costs will be difficult to calculate or to
predict when we set such fees, charges, and assessments, because we cannot know
in advance: (a) whether you will pay on a timely basis, if ever; (b) if you do
pay late, when you will actually pay; and (c) what costs we will incur because
of your late payment or non-payment.
ii.
Collection Costs. If we use a collection agency or attorney to collect
money owed by you, you agree to pay the reasonable costs of collection,
including, but not limited to, any collection agency fees, reasonable
attorneys’ fees, and arbitration or court costs. If you change your email or other contact information without notifying
us of such change, you agree that you will be responsible for all costs
(including attorneys’ fees) and liabilities incurred by us or our collection
agent as a result of any attempt to collect any debt through the contact
information you provided, including any costs or liabilities associated with
misdirected calls.
i.
Suspension/Disconnect. If you fail to pay the full amount due for
any or all charges then owe, at our sole discretion in accordance with and
subject to applicable law, we may suspend or disconnect any or all the Rental
and Subscription Services you receive without a reduction in the fee or charges
for such Rental and Subscription Services.
Cancellation by Account Owner. If you terminate your Rental or Subscription Services, you may use your Rental and Subscription Services until the end of the then-current period and your Rental and Subscription will not be renewed after that period expires. However, you will not be eligible for a prorated refund of any portion of the Rental or Subscription Services charges paid for the then-current Subscription Term, subject to specific cancellation and refund rights listed below.
Suspension/Termination by Tomofun. Tomofun may immediately terminate or suspend your account, and all or a portion of your Rental and Subscription Services, without notice if: (a) your payment is overdue (provided that we will use reasonable efforts to notify you of the overdue payment before we terminate or suspend); (b) you violate the General Terms and Conditions then in effect; (c) you violate any of these terms herein; (d) you engage in conduct that is a violation of any applicable law or regulations; or (e) if you engage in conduct that is damaging, threatening, abusive, or harassing to other people or others’ property.
If we terminate or suspend your Rental and Subscription Services, your license to use any hardware, software or content as provided below in connection with the Rental and Subscription Services is also terminated or suspended (as applicable). You must pay all Rental and Subscription Services charges up to and including the date of termination. If your Rental or Subscription is terminated, Tomofun has the right to immediately delete any and all data collected or other information stored in or for your account without further notice. All data will be permanently deleted and unavailable for backup by you or your Authorized Users without further notice. Should you wish to resume your Rental and Subscription Services, you have seven (7) days after any suspension or termination to resume services and restore data by going to your account settings on your Furbo Mobile App and select “Resume Subscription,” or by contacting Customer Support at support@furbo.com.
Furbo
Hardware Product. “Furbo
Hardware Product” means all new or reconditioned Furbo Hardware Product, or
replacement thereof that we or our agent provides or leases to you during your
Subscription Term. You expressly agree that you will use the Furbo Hardware
Product exclusively in connection with the Rental and Subscription Services.
You agree that all Furbo Hardware Products
No Unauthorized Tampering. You agree not to attach or assist any person to
attach any unauthorized device to, or otherwise tamper with, our Furbo Hardware
Product, the Rental and Subscription Services, or our network for any purpose,
including, but not limited to the unauthorized reception of the Rental and
Subscription Services. If you make or assist any person to make any
unauthorized connection or modification to or otherwise tamper with Furbo Hardware
Product or the Rental and Subscription Services or any other part of our
network, we may terminate the Rental and Subscription Services and recover
damages resulting from your actions. You also agree that you will not attach
anything to our Furbo Hardware Product. You agree that it would be difficult,
if not impossible, to calculate precisely the lost revenue resulting from your
receipt of unauthorized Rental and Subscription Services or the tampering with
Furbo Hardware Product or our network, and therefore you agree to pay us as
liquidated damages, the sum of $300.00 per device used to receive the
unauthorized Rental and Subscription Services. The $300.00 liquidated damages
are in addition to our cost to replace any altered, damaged, or unreturned
Furbo Hardware Product or other Hardware Product owned by us, including any
incidental costs. The unauthorized reception of the Rental and Subscription
Services may result in criminal fines and/or imprisonment.
End User Software Licenses. Software or applications may be required to use
certain features of the Rental and Subscription Services. You agree to comply
with the terms and conditions of all end user license agreements accompanying
any software to such software distributed or used in connection with the Rental
and Subscription Services including, without limitation, our General Terms and
Conditions, as these agreements may be amended from time to time. All such
agreements are incorporated in this Agreement by reference. When this Agreement
terminates, all end user licenses also terminate and you agree to uninstall all
versions and copies of all software received by you in connection with the Rental
and Subscription Services.
Revocable License. The Rental and Subscription Services and Furbo
Hardware Product, including, but not limited to, any firmware or software
embedded in the Furbo Hardware Product or used to provide the Rental and
Subscription Services, are protected by trademark, copyright, patent and/or
other intellectual property laws and international treaty provisions. You are
granted a revocable license to use such firmware and software in object code
form (without making any modification thereto) strictly in accordance with this
Agreement. You acknowledge and understand that you are not granted any other
license to use the firmware or software embedded in the Furbo Hardware Product
or used to provide the Rental and Subscription Services. You shall not take any
action nor allow anyone else to take any action that will reverse compile,
disassemble, reverse engineer, or otherwise attempt to derive the source code
from the binary code of the firmware or software.
You agree that the
Rental and Subscription Services and the Furbo Hardware Product will be used
only for personal, residential, non-commercial purposes, unless otherwise
specifically authorized by us in writing. You are prohibited from reselling or
permitting another to resell the Rental and Subscription Services in whole or
in part, or using or permitting another to use the Furbo Hardware Product or
the Rental and Subscription Services, directly or indirectly, for any unlawful
purpose, including, but not limited to, in violation of any policy we post
applicable to the Rental and Subscription Services. Use of the Furbo Hardware
Product or Rental and Subscription Services for transmission, communications or
storage of any information, data or material in violation of any U.S. federal,
state or local regulation or law is prohibited. You acknowledge that you are
accepting this Agreement on behalf of all Authorized Users who use the Furbo
Hardware Product and/or Rental and Subscription Services authorized by you and
that you shall have sole responsibility for ensuring that all other Authorized
Users understand and comply with the terms and conditions of this Agreement and
any applicable policies including, but not limited to, our General Terms and
Conditions and Privacy
Policy. You are liable for all authorized and unauthorized use of the
Rental and Subscription Services and you agree to notify us immediately in
writing at support@furbo.com if your
Furbo Hardware Product has been stolen or the Rental and Subscription Services
is used without your authorization. If you fail to notify us in a timely
manner, the Rental and Subscription Services may be terminated without notice
and you may incur additional charges.
Subject to
applicable law, we have the right to change our Rental and Subscription
Services plans, Furbo Hardware Product, rates and charges, at any time with or
without notice to you. We also may rearrange, delete, add to, or otherwise
change programming or features or offerings contained in the Rental and
Subscription Services, including, but not limited to, content, functionality,
storage capacity, Furbo Hardware Product requirements. We may deliver any
notice concerning changes to the Rental and Subscription Services and our
relationship with you, including notice of any change to this Agreement, in any
one or more of the following ways, as determined in our sole discretion, by:
(1) in-app push notifications; (2) posting it on www.Furbo.com or
any other website about which you have been notified; or (3) e-mail to the
address for your account in our records.
You agree that any one of the foregoing will constitute sufficient and
effective notice under this Agreement. Because we may from time to time notify
you about important information regarding the Rental and Subscription Services
and this Agreement by these methods, you agree it is your responsibility to
review such notifications. If any material change negatively affects your
Rental and Subscription Services, you have the right to cancel your Rental and
Subscription Services. Your continued use of the Rental and Subscription
Services for more than seven (7) days after the change, however, will
constitute your acceptance of the change.
THE FURBO HARDWARE
PRODUCT AND SUBSCRIPTION SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY
KIND, EITHER EXPRESS OR IMPLIED. NEITHER WE NOR OUR AFFILIATES, SUPPLIERS,
EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS PARTNERS
WARRANT THAT THE FURBO HARDWARE PRODUCT AND SUBSCRIPTION SERVICES WILL MEET
YOUR REQUIREMENTS, THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED
FORM, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR
WITHOUT ERROR. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE,
NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE
HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY
APPLICABLE LAW.
Application. The
limitations of liability set forth in this Section apply to any acts,
omissions, and negligence of us and our underlying third-party service providers,
agents, suppliers, distributors, licensors and business partners (and their
respective officers, employees, agents, contractors or representatives) which,
but for that provision, would give rise to a cause of action in contract, tort
or under any other legal doctrine.
One Year Limitation Period. YOU MUST COMMENCE YOUR ACTION WITHIN ONE (1) YEAR OF
THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR
YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENTS OR FACTS. AS PROVIDED
IN SECTION 2, YOU MUST NOTIFY US OF ANY BILLING DISPUTE WITHIN 120 DAYS OF
RECEIVING THE CHARGES YOU DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM
BASED ON SUCH EVENT OR FACTS. IF FOLLOWING SUCH NOTIFICATION THE DISPUTE IS NOT
RESOLVED TO YOUR SATISFACTION YOU MAY COMMENCE AN ACTION IN ACCORDANCE WITH
THIS AGREEMENT FOR UP TO ONE (1) YEAR FROM RECEIPT OF THE DISPUTED CHARGES.
Other Services or Hardware Product. BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL
CLAIMS AGAINST US FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE
FURBO HARDWARE PRODUCT AND SUBSCRIPTION SERVICES AND ANY OTHER SERVICE,
SYSTEMS, OR HARDWARE PRODUCT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR
INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE RENTAL AND
SUBSCRIPTION SERVICES IN ACCORDANCE WITH SECTION 3.
Third Parties. Notwithstanding anything to the contrary in this Agreement, you
acknowledge and understand that we may use third parties to provide components
of the Rental and Subscription Services, including without limitation, their
services, Hardware Product, infrastructure, or content. We shall not be bound
by any undertaking, representation or warranty made by an agent, or employee of
ours or of our underlying third-party providers and suppliers in connection
with the installation, maintenance, or provision of the Rental and Subscription
Services, if that undertaking, representation, or warranty is inconsistent with
the terms of this Agreement. We are not responsible for any services, products,
infrastructure, and content that are not provided by us, or the performance (or
non-performance) of third-party services, products, infrastructure, or content,
even if they are components of the Rental and Subscription Services, and we
shall have no liability with respect to such services, products,
infrastructure, and content. We do not endorse or warrant any third-party
products, services, or content that are distributed or advertised over the
Rental and Subscription Services.
Damages. EXCEPT
AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER WE NOR OUR AFFILIATES,
SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, DISTRIBUTORS, LICENSORS OR BUSINESS
PARTNERS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING,
BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO YOU OR TO ANY OTHER
PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS
(1) ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL
LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF
EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES, OR DEATH) THAT
RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON
OR USE OF THE FURBO HARDWARE PRODUCT, OR THE RENTAL AND SUBSCRIPTION SERVICES
OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF
THE FURBO HARDWARE PRODUCT, OR THE RENTAL AND SUBSCRIPTION SERVICES (INCLUDING,
BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, HARDWARE OR
SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES,
WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION, OR
FAILURE OF PERFORMANCE OF THE RENTAL AND SUBSCRIPTION SERVICES, THE FURBO
HARDWARE PRODUCT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF CALL DETAIL,
E-MAIL, VOICEMAIL, OR OTHER INFORMATION OR DATA); OR
(2)ANY LOSSES,
CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT
DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT,
OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE FURBO HARDWARE
PRODUCT, OR THE RENTAL AND SUBSCRIPTION SERVICES BY YOU OR ANY OTHER PERSON OR
ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY,
COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY.
Your Sole Remedies. Your sole and exclusive remedies under this Agreement
are as expressly set forth in this Agreement. Certain of the above limitations
may not apply if your state does not allow the exclusion or limitation of
implied warranties or does not allow the limitation or exclusion of incidental
or consequential damages. In those states, our liability and of our employees,
affiliates, suppliers, agents, contractors, distributors, licensors and
business partners is limited to the maximum extent permitted by law.
Survival of Limitations. All representations, warranties, indemnifications,
and limitations of liability contained in this Agreement shall survive the
termination of this Agreement; any other obligations of the parties hereunder
shall also survive, if they relate to the period before termination or if, by
their terms, they would be expected to survive such termination.
YOU AGREE THAT YOU
SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US AND
OUR EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS, CONTRACTORS, DISTRIBUTORS,
LICENSORS AND BUSINESS PARTNERS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES
OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND
COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND
CAUSES OF ACTION ARISING OUT OF (a) YOUR USE OF THE RENTAL AND SUBSCRIPTION
SERVICES, OR THE FURBO HARDWARE PRODUCT; (b) VIOLATION OR INFRINGEMENT OF
CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK,
TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING
FROM YOUR USE OF THE RENTAL AND SUBSCRIPTION SERVICES OR ANY UNAUTHORIZED
APPARATUS OR SYSTEM; (c) YOUR BREACH OF ANY PROVISION OF THESE TERMS HEREIN OR
ANY GENERAL TERMS AND CONDITIONS.
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 Rental and Subscription 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.
Right to Opt Out. IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY
DECLINE TO HAVE YOUR DISPUTES WITH US ARBITRATED BY NOTIFYING US, WITHIN 30
DAYS OF YOUR FIRST FURBO SERVICE ACTIVATION.
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.
Survival. This
Arbitration Provision shall survive the termination of your Rental and
Subscription Services with us.
You agree that
Tomofun and its agents may store and record any video, image, voice, text, or
other communications data that are transmitted between your Furbo Mobile App
and your Furbo Hardware Product while using the Rental and Subscription
Services or any Furbo Hardware Product. Such video, image, voice, text, or
stored in Tomofun’s servers will be properly protected and will not be
disclosed to any other third party unless subpoenaed by the court.