Terms and Conditions
Last
Modified: April, 2019
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
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.
Acceptance
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.
IF YOU DO
NOT AGREE TO THE TERMS, PLEASE DO NOT ACCESS, USE, OR REGISTER FOR ANY
SERVICES.
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.
Changes to
this Agreement and Services
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 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.
NOT AN
EMERGENCY SERVICE
TOMOFUN
SERVICES DO NOT PROVIDE 911 OR ANY OTHER EMERGENCY SERVICES. IF YOU ARE
EXPERIENCING A 911 OR ANY OTHER EMERGENCY, IMMEDIATELY CONTACT 911, THE POLICE
DEPARTMENT, FIRE DEPARTMENT, NEAREST HOSPITAL OR OTHER EMERGENCY SERVICE
INSTEAD. 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 a 911 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. The Service is
intended to be accessed and used for non-time-critical information and non-emergency
purposes.
Account
Eligibility
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; 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.
Legal
Restrictions on Access and Use of the Services
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:
Any
applicable laws or regulations relating to the recording or disclosure of
photographs, video and/or audio recordings, including any specific laws
relating to use of our Services in the workplace, in public, or in private
places that are not your home; and/or
Any laws or
regulations requiring you to provide notice to and/or obtain consent from
individuals with respect to your use of the Services.
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.
Acceptable
Use
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:
You may not
violate any laws, regulations, guidelines or ordinances, including data
protection laws, export control laws, or any other laws referenced above;
You will not
license, sell, rent, lease, transfer, assign, distribute, host or otherwise
commercially exploit the Services;
You will not
attempt to obtain the password, account or other security information from any
other Account Owner or Authorized User on our Services;
You will not
compromise the security of your account or any other account on the Tomofun
Services;
You will not
engage in conduct that is harmful, deceptive, threatening, harassing, vulgar,
defamatory, obscene, fraudulent or otherwise objectionable or questionable;
You will not
interfere with, disrupt, violate or attempt to gain unauthorized access to any
computer network or servers connected to the Services or violate the
regulations, policies or procedures of such networks;
You will not
copy, store, reproduce, distribute, republish, download, display, post or
transmit any part of the Services or Content provided via our Services, except
as permitted by Tomofun in writing;
You will not
infringe or violates the intellectual property rights or any other rights of
another person or entity, including Tomofun;
You will not
engage in conduct that may result in “spam” or any form of auto-responder on
the Services, or processes that run or activate while you are not logged into
the Services;
You will not
modify, make derivative works of, disassemble, reverse-compile or
reverse-engineer any part of the Services;
You will not
access or use the Services for purposes of building a competitive or similar
product or service;
You will not
upload, transmit or distribute any computer viruses, worms or any software
intended to damage or alter a computer or communications network, computer,
handled mobile device, data, the Services, or any other system, device or
property;
You will not
interfere with the proper working of the Services, including any unreasonable
load on the Services’ infrastructure;
You will
only access or attempt to access the Services through the methods or means
provided by Tomofun;
You will not
remove, obscure or modify any proprietary rights notices (including copyrights
and trademark notices) that may be provided by or in connection with the
Services; and/or,
You will not
“crawl,” “scrape” or use “spiders” on any page, data, or portion of or relating
to the Services, whether by automated or manual means.
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. We have the sole right to determine whether you are
in breach of any terms contained in this Agreement.
Content
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 own the
intellectual property rights in the Content used by you or otherwise have the
right to use the Content;
You grant us
the license to your Content as set forth below; and,
The posting
or dissemination of your Content on or through the Service does not violate the
privacy rights, publicity rights, copyrights, intellectual property rights,
contract rights or any other rights of any person or entity.
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.
Private
Content
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:
To provide
the Services to you;
To improve
and optimize the Services, or otherwise expand Services;
To develop
new Services;
To protect
your rights and interests, or the rights and interests of third parties, the
public, or Tomofun;
To comply
with applicable law or regulation, legal process (e.g., subpoena, warrant,
etc.), or inquiry by a public or governmental authority;
To enforce
this Agreement, including any investigation of alleged violations of this
Agreement; or,
To detect,
prevent, and mitigate fraudulent activity on our Services, or any security or
technical issues related to our Services.
Trademarks,
Copyrights and Intellectual Property
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.
Feedback
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.
Purchases
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.
Subscription Services – Furbo Dog Nanny
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. In our sole discretion, we may modify,
suspend, terminate, or change the Subscription Services at any time.
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 Services you
purchased for each Subscription Term until such subscription is cancelled. To
change or discontinue a Purchase, please go to your account settings or contact
us at least 24 hours before the next Subscription Term. To use the Furbo Dog
Nanny you must provide us with one or more Payment Methods. "Payment
Method" means a current, valid, accepted method of payment, as may be
updated from time to time and which may include payment through your account
with a third party. You must cancel your Subscription Services before it renews
to avoid billing of the next Subscription Term’s fees to your Payment Method
(see "Cancellation" below).
Free Trial.
Your purchase of a Furbo Hardware Product may include a trial period to use the
Subscription Service at no cost (“Free Trial”). The Free Trial period of your
Subscription Service lasts for three months, or as otherwise specified during
sign-up and is intended to allow new subscribers to try our Subscription
Service. We will not require you to provide your payment details to start the
Free Trial.
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 would
like to continue to access the Subscription Service after your Free Trial ends,
you must purchase a Subscription Service. If you do not purchase a Subscription
Service, then your access to the Subscription Service will end.
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.
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.
Cancellation.
To cancel, go to the "Account" page on our website or your account
settings on your Mobile App and follow the instructions for cancellation. You
can cancel your auto-renewal for your Subscription Services at any time, and
you will continue to have access to the Subscription Services through the end
of your Subscription Term. You must cancel your subscription-based Services at
least 24 hours before the next Subscription Term to avoid further charges.
Unless you cancel auto-renewal for your subscription, the Subscription Services
will be automatically extended for successive renewal periods of the same
duration as the Subscription Term originally selected, at the then-current
non-promotional rate. We do not provide refunds or credits for any partial
Subscription Term. If you cancel your Subscription Services, your account will
automatically close at the end of your current billing period for your
Subscription Term.
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. It is likely
that such data, software, or other materials will be lost after your
Subscription Services end. Tomofun will not be responsible for any such damage
or loss.
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.
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.
For Canadian
residents only. Notwithstanding the foregoing, if you are a resident of Canada,
you have 7 days from the date you signed up for a Subscription Service to
cancel and receive a full refund. Please note that if you signed up for a Free
Trial, then the 7-day period runs from the date that you signed up for the Free
Trial.
Refund Policy – Hardware Products
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.
Service
Interruptions
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. Notwithstanding the foregoing, if we terminate the Subscription
Services we will refund the prorated portion of any prepaid amount for
Subscription Services after such termination.
Intended Use
and Reliability of 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.
System Requirements
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.
Installation and Use
Tomofun will
provide you with installation and safety instructions when you Purchase our
Services. These instructions may accompany the Hardware Products or may be
delivered via a message in the App. 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.
Warning
Messages in the App
From time to
time, we may deliver warning messages via the App to update users on the safe
usage of our Services. Please monitor the App for these warning messages. It is
your responsibility to ensure you read and follow these warning messages.
Availability,
Errors and Inaccuracies
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).
Automatic Software Updates
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.
Third Party
Links and Services
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.
Contests,
Sweepstakes and Promotions
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.
Security
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.
Indemnification
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.
Warranty
Disclaimer
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.
Limitations
of Liability
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.
Dispute
Resolution and Waiver of Class Action and Jury Rights
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.
General
Entire
Agreement
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.
Term for
Cause of Action
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.
Governing
Law
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. 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.
Headings
The section
titles in this Agreement are for your convenience only and have no legal or
contractual effect.
Assignment
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 rights
and obligations under this Agreement in part or in its entirety without notice
to you.
Severability
and Waiver
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.
Notifications
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.
Termination
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.
Contact Us
If you have
any question about this Agreement, please contact us at support@furbo.com.
Terms of Furbo Nanny Cam Bundle Subscription Services
Revised August
3, 2020
The following Terms of Furbo Nanny Cam Bundle
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 Furbo Nanny Cam Bundle Services offered by Tomofun Co. Ltd. and its
assignees, subsidiaries and affiliated companies (collectively “Tomofun”, “we”,
“us” or “our”).
The subscription to Furbo Nanny Cam Bundle Services,
or other digital services that we offer (individually or collectively as
“Subscription Services” hereinafter) requires either the purchase or rental of
a Furbo Dog Camera (“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 for the
entire rental period. You must pay the
minimum commitment and recurring charges based on the description and pricing
of our Furbo Nanny Cam Bundle 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 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 Furbo Nanny
Cam Bundle 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 Furbo Nanny Cam Bundle Services,
you will need at least one Furbo Dog Camera (2.0 version or later). With each
Furbo Hardware Product, other users 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 Furbo Nanny Cam Bundle Services charge recur and are automatically
renewed 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 Furbo Nanny Cam Bundle Services, you acknowledge that your
Furbo Nanny Cam Bundle Services have recurring payment features and you accept
responsibility for all recurring payment obligations prior to cancellation of
your Furbo Nanny Cam Bundle Services by you or Tomofun. To change or terminate your Furbo Nanny Cam
Bundle Services, go to your account / device settings on your Mobile App and
follow the instructions, or contact Customer Support at support@furbo.com.
Your first payment corresponding to
your Subscription Term is charged when you order your subscription. Your Subscription Term starts when you sign
up the Subscription Services. If you
activate your Furbo Nanny Cam Bundle Services within thirty (30) days upon your
1st subscription payment, your next recurring payment will be
charged one month after your Furbo Nanny Cam Bundle activation date and any
automatically renewed Subscription Terms thereafter. If you activate your Furbo Nanny Cam Bundle
Services more than thirty (30) days after your 1st subscription
payment, you next recurring payment will be charged one month after your first
subscription payment and any automatically renewed Subscription Terms
thereafter.
Amount to be Charged.
You, as the Account Owner, agree to pay the monthly / annual / biennial
Furbo Nanny Cam Bundle Services charges specified when you ordered the Furbo
Nanny Cam Bundle 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
Furbo Nanny Cam Bundle Services reaffirms that we are authorized to charge you
for that Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle Services charges, and/or to
place a hold on your Payment Method with respect to any unpaid charges for your
Furbo Nanny Cam Bundle Services.
You can update your Payment Methods by going to our home.furbo.com 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 Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle
Services are nonrefundable. Following
any cancellation, however, you will continue to have access to the Furbo Nanny
Cam Bundle 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 Furbo Nanny Cam Bundle Services you receive without a reduction in
the fee or charges for such Furbo Nanny Cam Bundle Services.
Minimum Commitment and Subscription
Term. By signing up for the monthly Furbo Nanny Cam Bundle
Services, you have agreed to a minimum Subscription Term of three (3)
continuous months. If you subscribe to an additional Furbo Hardware Product,
such three-month minimum commitment term will apply to each Furbo Hardware
Product you add. After the first three (3) months, your Furbo Nanny Cam Bundle
Services will continue month-to-month.
Your Subscription Term will automatically renew until terminated by you
or us. You can find a description of our
Subscription Services and current pricing on our website, and we will explain
which Subscription Service and pricing options are available to you when you
sign up for or upgrade the Subscription Services.
Cancellation by Account Owner. If you terminate your Furbo Nanny
Cam Bundle Services, you may use your Furbo Nanny Cam Bundle Services until the
end of the then-current period and your Furbo Nanny Cam Bundle will not be
renewed after that period expires. However, you will not be eligible for a
prorated refund of any portion of the Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle
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 Furbo Nanny Cam Bundle
Services, your license to use any hardware, software or content as provided
below in connection with the Furbo Nanny Cam Bundle Services is also terminated
or suspended (as applicable). You must pay all Furbo Nanny Cam Bundle Services
charges up to and including the date of termination. If
your Furbo Nanny Cam Bundle Services 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 or
restoration by you or your Authorized Users without further notice. Should you wish to resume your Furbo Nanny
Cam Bundle service, you must go to your account settings on your Furbo Mobile
App and select “Resume Subscription,” or by contacting Customer Support at support@furbo.com by the end of current billing
cycle. You will not be able to restore
previously deleted data even after you resume subscription.
You agree that upon cancellation or
termination of the Furbo Nanny Cam Bundle Services, you will do the following:
i.
Return Address. You will return all Rental Furbo
Hardware Product to us at our USA Return Center, 13936 Valley Blvd, Building B,
ABC Depot Logistics, La Puente, CA 91746, USA, or to our designee, within
thirty (30) days after your Furbo Nanny Cam Bundle Services are terminated. Failure
to return any Rental Furbo Hardware Product will result in the charge of an
Unreturned Hardware Product Fee (as defined below).
ii.
Unreturned Hardware Product Fee. “Unreturned Hardware Product
Fee” refers to a fee charged by Tomofun to an Account Owner for any unreturned
or untimely return of a Rental Furbo Hardware Product upon termination of the
Furbo Nanny Cam Bundle Services provided under this Agreement. For example, the
fee for an unreturned full size Furbo Dog Camera is USD $179 plus applicable
tax and USD $14 plus applicable tax if a Furbo Dog Camera is returned without
its original wooden lid. Except as
otherwise expressly provided for in these Terms, any changes to an Unreturned
Hardware Product Fee will take effect following notice to you.
iii.
Transfer of Title. An Unreturned Hardware Product Fee is non-refundable once charged when
we fail to receive your return by the thirty (30) day deadline. Such charge will result in an equivalent sale
of, or the transfer of title to, of such unreturned Furbo Hardware Product from
Tomofun to you. With such unreturned Furbo, you will only have access to the
basic Furbo stand-alone functions without the Furbo Dog Nanny Service. Until
such charge is paid in full, Tomofun remains the owner of such Unreturned
Hardware Product. Once an Unreturned
Hardware Product Fee has been charged and paid because we fail to receive the
Hardware Product, no refund of any amount will be issued to you even if you
subsequently return the Rental Furbo Hardware Product to us. If you have provided a valid third party
courier (FEDEX or UPS only) return tracking number and the shipment was lost or
damaged during shipping by the courier without your fault, please contact
Customer Support via 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 Furbo Nanny Cam Bundle Services. You agree that all Furbo Hardware
Product belongs to us or other third parties. You may not sell, lease, abandon,
or give away the Furbo Hardware Product, or permit any other service provider
to use the Furbo Hardware Product, until an Unreturned Hardware Product Fee has
been paid. You agree that you will not
allow anyone other than Tomofun or our agents to service the Furbo Hardware
Product. For avoidance of doubt, Furbo Hardware Product remains Tomofun-owned
Hardware Product, and Tomofun retains title to all Furbo Hardware Product, at
all times, until an Unreturned Hardware Product Fee is paid for that device.
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 Furbo Nanny Cam
Bundle Services, or our network for any purpose, including, but not limited to
the unauthorized reception of the Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle
Services or any other part of our network, we may terminate the Furbo Nanny Cam
Bundle 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 Furbo Nanny Cam Bundle
Services or the tampering with Furbo Hardware Product or our network, and
therefore you agree to pay us as liquidated damages, the sum of USD300.00 per
device used to receive the unauthorized Furbo Nanny Cam Bundle Services. The
USD300.00 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 Furbo Nanny Cam Bundle 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 Furbo Nanny Cam
Bundle 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 Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle Services.
Revocable
License. The
Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle 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 Furbo
Nanny Cam Bundle 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 Furbo Nanny Cam
Bundle 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 Furbo Nanny Cam Bundle Services in whole or in part, or using or
permitting another to use the Furbo Hardware Product or the Furbo Nanny Cam
Bundle Services, directly or indirectly, for any unlawful purpose, including,
but not limited to, in violation of any policy we post applicable to the Furbo
Nanny Cam Bundle Services. Use of the Furbo Hardware Product or Furbo Nanny Cam
Bundle 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 Furbo
Nanny Cam Bundle 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 Furbo Nanny Cam Bundle Services and you agree to notify us
immediately in writing at support@furbo.com if your Furbo Hardware Product has
been stolen or the Furbo Nanny Cam Bundle Services is used without your
authorization. If you fail to notify us in a timely manner, the Furbo Nanny Cam
Bundle Services may be terminated without notice and you may incur additional
charges.
Subject to applicable law, we have
the right to change our Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle Services, including, but not
limited to, content, functionality, storage capacity, Furbo Hardware Product
requirements. We may deliver any notice concerning changes to the Furbo Nanny
Cam Bundle 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 Furbo Nanny Cam Bundle Services and this Agreement by
these methods, you agree it is your responsibility to review such notifications.
If any material change negatively affects your Furbo Nanny Cam Bundle Services,
you have the right to cancel your Furbo Nanny Cam Bundle Services after your
initial minimum commitment and should do so before the end of your current
billing cycle. Your continued use of the Furbo Nanny Cam Bundle Services after
the change without canceling, 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 FURBO NANNY CAM BUNDLE 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 Furbo Nanny Cam Bundle
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 Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle 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
Furbo Nanny Cam Bundle 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 FURBO NANNY CAM BUNDLE SERVICES OR (b) THE
INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE FURBO
HARDWARE PRODUCT, OR THE FURBO NANNY CAM BUNDLE 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 FURBO NANNY CAM BUNDLE 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 FURBO NANNY CAM BUNDLE 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 FURBO NANNY CAM BUNDLE 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 FURBO
NANNY CAM BUNDLE 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 Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle 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 Furbo Nanny Cam Bundle 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.