PKINNO INC. and its subsidiaries and affiliates (collectively, “PKinno”, “we” “us” or “our”) provides a smart access system for your apartment, office, home or other types of venues or buildings and allows you to grant and monitor access to locations equipped with PKinno’s lock systems (the “System”). In connection with the System, PKinno provides (1) a website accessible at https://www.reagle.io/ (“Site”); (2) services accessible through a user’s computer, mobile phone or tablet (each, a “Device” and such services, the “Mobile Apps”); (3) electronic physical access products containing PKinno’s proprietary technology (“Hardware”); and (4) proprietary software embedded on the Hardware (together with any updates thereto, the “Firmware”). The Mobile Apps, together with all other applications offered by PKinno in connection with PKinno’s services shall be referred to as the “App”. The Site, Apps, and all other features, tools, services and content provided by PKinno in connection with the System (collectively, the “Services”) are intended for use solely with the Hardware or as otherwise made available by PKinno.
The Apps provided by PKinno are intended for use in the United States (the “Territory”) in connection with the System. You hereby acknowledge and agree that you may only use the Apps, the System and any other Services provided by PKinno within the Territory, even if you are able to download the Apps outside of the Territory.
1. Acceptance of Terms:
a. By clicking “I Agree” to the relevant prompts on the Apps, clicking “I Agree” on the Site, registering for a user account (”Account”) or accessing or using the Services in any manner, including by visiting the Site, or accessing Hardware as a User (defined below), you agree to these Terms. If you are accessing the Services or Hardware on behalf of an entity, you hereby agree to these Terms on your behalf and on behalf of such entity.
b. Certain of the Hardware or Services may be subject to additional terms and conditions specified by us from time to time. Your use of such Hardware or Services is subject to those additional terms and conditions. For example, by using any Hardware, you agree to the applicable Limited Warranty issued by us in connection with the Hardware (which may be found at https://www.reagle.io/warranty). These additional terms, and all other operating rules, policies, and procedures that PKinno may publish from time to time through the Services, are incorporated into the Terms by this reference and, except as expressly set forth in the Terms, may be updated from time to time without notice to you.
c. ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
d. If you are accessing and using the Services on behalf of an entity, you represent and warrant that you have the right, authority, and capacity to accept and agree to these Terms on behalf of yourself and the entity you represent.
e. As described below in Section 7(c), you consent to the automatic updating of software included in the Hardware and Services from time to time and agree to promptly install updates when asked to do so. If you do not agree, you should not use any software included in the Hardware or Services.
2. Relation of These Terms to Other Agreements: These Terms govern your use of the Services and certain aspects of the Hardware, including data from the Hardware and App that will be uploaded to the Services. Your use of the Hardware is also covered by the limited warranty provided with that Hardware (“Limited Warranty”). Certain features of the Services may be subject to additional community or user guidelines, terms, or rules, which will be posted at https://www.reagle.io/tou to view all terms and policy.
3. User Account and Access Levels:
a. Multiple Access Levels. One Account may be associated with different levels of access (“Access Levels”) and be subject to different restrictions governing the applicable Access Levels. A single piece of Hardware may also be associated with multiple Accounts. For example, an Owner (defined below) may also be a Manager (defined below) of certain Hardware until another individual occupies the property equipped with such Hardware, and therefore would be able to use his or her Account to generate Codes as a Manager for such Hardware.
b. Owners. The individual who owns Hardware (e.g., a property owner that purchases and installs the Hardware) is the “Owner”. If you are an Owner who invites or enables a User to use Hardware you own, you acknowledge and agree that such User may subsequently invite or enable Users (defined below) to use the Hardware, and therefore access the location equipped with the Hardware. If you are an Owner, you acknowledge and agree that you should only authorize those individuals that you trust to be Managers or Users.
c. Managers. Individuals who are authorized (usually by the Owner) to control Hardware, such as the tenants of units equipped with Hardware, are “Managers.” Managers can use the Services to monitor and control the Hardware and access to the location equipped with the Hardware (for example, a Manager can generate Codes (defined below) or sync his or her Device with the Hardware to obtain access logs).
a. In order to register for any account on the Services (“Account”), you must be at least 18 years old. If you are under 18 years old but over 13 years old, you may register for an Account and use the Services, but only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are under 13 years old, you may not use any part of the Services, under any circumstances or for any reason, either as a registered or unregistered user.
b. You will be bound by these Terms wherever you access or use the Hardware or Services. Although our Site is accessible worldwide, the Hardware and Services are not available to all persons or in all countries. To the extent permissible by law, PKinno accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Services or Hardware in a country not specifically approved by PKinno. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, including but not limited to (i) any laws requiring notice to or consent of third parties with respect to your use of PKinno’s Services and Hardware. The right to access the Hardware and Services is revoked where these Terms or use of the Hardware and Services is prohibited or to the extent offering, sale or provision of the Hardware or Services conflicts with any applicable law, rule or regulation.
c. By using the Services, you represent and warrant that you meet all the eligibility requirements set forth in these Terms. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time.
d. The Services are offered only for your use, and not for the use or benefit of any third party.
6. Account Security:
a. You must keep your Account and any password, Code or Device you use in connection with the Hardware or Services secure. You agree to use strong passwords and Codes, and to maintain the confidentiality of your password and all Codes. You may never use another person’s user Account or registration information for the Services without permission. You shall be responsible for all uses of your Account, Device and login information, whether or not authorized by you. PKinno shall not be responsible for any actions or omissions of any individual to whom access is granted through your Account, regardless of whether you intended to grant such individual access. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorized use of your Account, Device or any passwords or Codes, and you should immediately change your password or Code, as applicable, to prevent further unauthorized use. You should never publish, distribute or post login information for your Account. PKinno is not liable for any loss or damage arising from your failure to comply with the above requirements. Codes are only for the use of the individual to whom such Code was issued. You must not share or disclose your Code with or to any other individual at any time.
b. We strongly recommend that you do not use the Services on a Device with a “jail broken” or “rooted” operating system. These operating systems can potentially allow other applications to circumvent security features on your Device. Any use of such Devices is at your own risk. You agree that PKinno will not be liable for any loss of functionality caused by such use and will indemnify us for all damage or liability arising or resulting therefrom.
a. The Services are designed to be used in connection with the Hardware, such as a PKinno electronic smart lock.
b. Subject to these Terms, we grant you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by (i) using the Site or Apps, solely in connection with the Hardware that is either installed on your property, that you have been validly authorized to access, or that is otherwise expressly provided by PKinno for your use and (ii) installing and using the Apps on your Device(s), solely for the purpose of using the Hardware and the Services in accordance with these Terms. You agree to comply with all instructions, usage rules and documentation that we may provide from time to time with respect to the Service or Hardware. You understand and agree that you are solely responsible for the result or claims arising from or in connection with your misuse or failure to follow instructions and documentation provided by PKinno to you.
c. Please note that we may from time to time update the Services, including without limitation by providing improvements, updates, new functionality, bug fixes, or other modifications (collectively “Updates”). Updates may occur automatically, without notice or any request for additional consent. By using the Services, you hereby consent to the Updates. If you do not want to receive the Updates, you must terminate your Account and stop using the Services, including the Software. In the event that we ask you to install Updates, you agree to do so promptly. We are not liable for any failure to install the Updates or any damages resulting therefrom. Updates are subject to these Terms, as well as any terms that apply to the Software and any additional terms that may be provided with such Update. By continuing to use the Services, you agree to all terms applicable to the Updates.
8. System Requirements:
a. In order to take advantage of full functionality associated with the Hardware and Services, the following are necessary: (i) properly functioning Hardware (including sufficient battery power, if applicable); (ii) at least one Device equipped with the Mobile App and a working Bluetooth connection; (iii) at least one valid Account and (iv) other system elements that may be specified by PKinno from time to time.
9. Open Source: The Services may contain or be distributed with open source software which may be covered by a different license. You agree that all open source software shall be and shall remain subject to the terms and conditions under which it is provided, and you shall be responsible for compliance with such terms
10. Feedback: You acknowledge that any suggestions, ideas, comments or other feedback you provide to us regarding the Hardware or Services (“Feedback”) shall become our sole and exclusive property without any compensation to you. We may, in our sole discretion, decide whether to use the Feedback in any of our products and services. You hereby assign to us all of your right, title and interest in the Feedback, including but not limited to all copyrights, patent rights, trade secrets and trademarks.
a. Definition. For purposes of these Terms, the term “Content” includes, without limitation, information, data, text, photographs (including Images), videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. For the purposes of this Agreement, “Content” also includes all User Content (as defined below).
b. User Content. All Content added, created, uploaded, submitted, distributed, or posted to the Services by any type of users (collectively “Content”) is the sole responsibility of the person who originated such Content. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate. You represent that (i) all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations and (ii) you have all rights necessary to upload, post, email, transmit, or otherwise disseminate your User Content using, or in connection with, the Services, or that you contribute in any manner to the Services, in the manner in which you contribute, without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
c. Use and Sharing of User Content and Content about users:
i. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection with the Services and our (and our successors’ and assigns’) businesses, including after the termination of your Account or the Services.
When a Manager or Owner grants access to a User, the User may receive the Manager’s or Owner’s name and information that allows the User to identify the location to which the Manager or Owner is granting access.
When a User accesses Hardware, the Hardware’s User and Owner may receive information about the User and the access event, such as the User’s name, and the time of access.
Users and Owners may also receive aggregate and/or anonymized information about Users and Codes, such as frequency of Code generation, frequency and time of Code use, and total number of Users who have accessed a particular Hardware. Owners will also receive information identifying the Hardware and the User controlling such Hardware.
d. Notices and Restrictions: The Services may contain Content specifically provided by us, our partners or our users, and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
e. Availability of Content: We reserve the right, but do not have any obligation to remove, block, edit or modify any Content at our sole discretion, at any time, without notice to you and for any reason or for no reason at all. We do not guarantee that any Content will be made available through the Services.
12. Notifications and Messaging: As part of the Services, we may communicate with users by sending notifications within the Mobile App or other messaging systems (including but not limited to SMS) (“Notifications”). For example, Codes and notifications may be sent to Users, via Notifications. Please note that SMS or internet fees may apply to the sending or receipt of Notifications. By registering for an Account, you hereby consent to receiving Notifications from us to your Device. You may opt out of receiving such messages in the future, but the Services may not work properly if you do opt out. If you are a Manager or Owner, you are responsible for obtaining the consent of your Users to receive Notifications from you in connection with the Services. By sending a Code to a User, you represent and warrant that you have all necessary consent from such User to the receipt of Notifications, including to any fees associated therewith.
13. Rules of Conduct:
a. The Hardware and Services, and any Content made available through or in connection with the Hardware and Services, including any and all Images, are solely intended for monitoring and controlling access to the location on which the Hardware is utilized or installed. As a condition of use, you promise to use the Hardware and Services only for the purposes set forth in these Terms. You may not use the Hardware or Services for any purpose that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, or is otherwise inappropriate, as determined by us in our sole discretion. You are responsible for all of your activity in connection with the Hardware and Services.
b. You shall not (and shall not permit any third party to) either (i) take any action or (ii) provide any Content that: (A) you know is false, misleading, untruthful or inaccurate or (B) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party.
c. You must not jeopardize the security of your Account or anyone else’s Account, including by allowing someone else to log in to the Services as you or sharing a Code with any other party.
d. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site or Services; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
e. You shall not directly or indirectly: (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Services or (iii) resell, copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
f. You may only copy or download parts of the Services (including any Content, any part of the Site or Apps, any User information and ay images collected and/or provided in connection with the Services, including Users’ Images) onto your own Device for your own use, and solely as necessary to use the Services as contemplated hereunder. You may not use the content of the Services, including any Images, in any other way or for any other purpose, including without limitation any public or commercial way, nor may you copy or incorporate any of the content of the Services into any other work, without the written consent of PKinno. You must have PKinno’s prior written consent before you can post or redistribute any portion of the Services.
g. Other than with respect to User Content, as between you and us, we retain full and complete title to all Content on the Services, including any downloadable software and all data that accompanies it. You may not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any Content therein.
h. We reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce these Terms, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, privacy or technical issues; (iv) respond to user support requests or (v) protect the rights, property or safety of us, our users and the public.
14. Acts of Users: PKinno is not responsible for the acts, omissions or behavior of any person or entity who is able to access the Hardware or Services through your Account or otherwise receives access from you (whether directly or indirectly), or for any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your or their use of the Hardware or Services.
15. Third Party Services:
a. The Services may be used in connection with other products and services, and may contain links, interfaces and referrals to, as well as content and data from, third-party websites, products and services. When you access third party resources, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any third party services does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we 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 the use of or reliance on any such content, goods or services available on or through any such website or resource.
16. Information Received Through the Services: Any information you receive through or about the Services or the Hardware is provided “as is” and “as available”. We cannot guarantee that any information is correct or up to date. Information provided through the Services is not a substitute for information from experts or professionals in the applicable area.
17. App Store: You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from such store, including the Apple, Inc. Device and Service Terms for the Apple App Store set forth below. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply. You acknowledge that these Terms are between you and PKinno and not with an App Store.
18. Modification; Suspension; Termination:
a. We may change or remove any features currently offered as part of the Services, or the Services themselves, at any time.
b. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance, repair, or other circumstances. You agree that you will not be entitled to any refund or rebate in connection with any such suspensions.
c. We may terminate your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your Account. If you wish to terminate your Account, you may do so by following instructions posted on the Site or made available through the Services, or by emailing us at email@example.com. Upon termination, your Account and right to use the Software and other Services will automatically terminate, but you may be able to continue using some parts of the Hardware. Any fees paid hereunder are non-refundable. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
d. If you transfer your Hardware to a new Owner or User, your right to use the Services with respect to the transferred Hardware automatically terminates. Your Account is not transferable, and the new Owner or User will have to register for a separate Account and accept these Terms (and any amendments) in order to use the Services.
a. Our aim is to make the Services highly reliable and consistently available; however, we cannot and do not guarantee that the Services will be available all of the time. The Services may be subject to sporadic interruptions and failures for a variety of reasons beyond PKinno’s control, including without limitation, third party network failures and coverage limitations, service provider uptime, and acts of God. Furthermore, our Services rely on or interoperate with a number of third party products and services. These third party products and services are beyond our control and their operation or failure may impact the use and reliability of our Services. PKinno is not responsible for direct or indirect damages and losses due to these third party products and services. You acknowledge these limitations and agree that PKinno is not responsible for any damages allegedly caused by the failure or delay of the Services.
b. To the fullest extent allowed by law, PKinno is not responsible for damage or liability caused by (i) use of the Hardware and Services for purposes other than for which the Hardware and Services are designed or intended, or in improper conditions or in violation of written instructions provided by PKinno; (ii) normal wear and tear or aging; (iii) improper use, repair, operation, maintenance or connections or (iv) to the extent allowed by law, attempted repair by anyone other than a facility authorized by PKinno.
c. The Hardware is not an ANSI or BHMA certified door lock and must be correctly installed and kept in good condition. You assume all risk associated with the suitability, installation and performance of the Hardware and other third-party components, hardware, software and services.
20. Warranty Disclaimer:
a. THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”. PKINNO AND ITS DIRECTOR, OFFICERS, AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. PKINNO AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PKINNO OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
b. WHEN YOU INVITE USERS OR SERVICE PROVIDERS TO USE YOUR DEVICE, HARDWARE OR THE SERVICE, YOU ASSUME ALL RESPONSIBILITY FOR THEIR USE, AND ANY DAMAGES THAT THEY MAY CAUSE TO YOU, PKINNO, ANY THIRD PARTY, OR ANY OF EACH OF OUR OR THEIR PROPERTY. YOU MUST CHOOSE YOUR INVITED USERS AND SERVICE PROVIDERS CAREFULLY. PKINNO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE HARDWARE OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED WITH OR TO THE HARDWARE OR SERVICES) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND PKINNO WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
c. You release us from all liability arising from or related to (i) your inability to acquire Content through the Services or (ii) any Content you acquire through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
d. You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
21. Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to your, your Users’ or any third party’s (a) use or misuse of, or access to, the Hardware, Services or Content; (b) violation of law, third party right or the Terms or (c) violation or infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
22. Limitation of Liability. IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE HARDWARE OR SERVICES FOR (A) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (B) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (C) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (I) FEES ACTUALLY PAID TO US FOR THE PARTICULAR HARDWARE OR SERVICES DURING THE IMMEDIATELY PREVIOUS TWELVE (12) MONTH PERIOD OR (II) $100.00. SOME JURISDICTIONS DO NOT ALLOW THE TYPES OF LIMITATIONS IN THIS PARAGRAPH, SO THEY MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OR THIS “LIMITATION OF LIABILITY” CLAUSE SHALL ATTEMPT TO EXCLUDE LIABILITY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
23. ARBITRATION AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS:
a. ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS THEN IN EFFECT, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. AS AN ALTERNATIVE, YOU MAY BRING YOUR CLAIM IN YOUR LOCAL “SMALL CLAIMS” COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT'S RULES AND IF WITHIN SUCH COURT’S JURISDICTION, UNLESS SUCH ACTION IS TRANSFERRED, REMOVED OR APPEALED TO A DIFFERENT COURT. YOU MAY BRING CLAIMS ONLY ON YOUR OWN BEHALF. NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT TO ARBITRATE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Hardware or Services or these Terms must be filed within one (1) year after such claim of action arose or be forever banned.
b. 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class- action waiver provisions in this Section 23, you must notify PKinno in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be emailed to PKinno at firstname.lastname@example.org. If you do not notify PKinno in accordance with this Section 23(b), you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. Such notification must include: (i) your name, (ii) your Account name; (c) your mailing address and (d) a statement that you do not wish to resolve disputes with PKinno through arbitration. If PKinno makes any changes to the Arbitration and Class Action Waiver section of these Terms (other than a change to the address at which PKinno will receive notices of dispute, opt-out notices, or rejections of future changes to the Arbitration and Clause Action Waiver section), you may reject any such change by sending us written notice within 30 days of the change to the address set forth in this Section 23(b). It is not necessary to send us a rejection of a future change to the Arbitration and Class Action Waiver section of these Terms if you had properly opted out of the arbitration and class-action waiver provisions in this Section 23 within the first 30 days after you first accepted these Terms. If you have not properly opted out of the arbitration and class- action waiver provisions in this Section 23, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject. This notification affects these Terms only; if you previously entered into other arbitration agreements with PKinno or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and PKinno.
c. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration and Class Action Waiver section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
24. Governing Law and Jurisdiction: These Terms shall be governed by and construed in accordance with the laws of the State of California, including its conflicts of law rules, and the United States of America. To the extent permitted by law, You agree that any dispute arising from or relating to the subject matter of these Terms shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of San Francisco, California. The parties hereby agree that the United Nations CISG shall have no application.
a. We reserve the right, in our sole discretion, to modify or replace any of these Terms, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature or Content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. While we will timely provide notice of modifications, it is also your responsibility to check these Terms periodically for changes. Your continued use of the Services following notification of any changes to these Terms constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms in effect at the time of such use.
b. Our employees are not authorized to vary these Terms. These Terms may be modified only (i) by obtaining our written consent in an agreement signed by an officer of PKinno; or (ii) as set forth above in the immediately preceding paragraph.
a. Entire Agreement and Severability. These Terms and any other applicable documentation made available to you by PKinno are the entire agreement between you and us with respect to the Services and Systems, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services and Systems. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
b. Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
c. Assignment. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
d. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect.
e. Notices. Unless otherwise specified in these Terms, all notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to email@example.com.
f. No Waiver. Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
g. Headings; Interpretation. The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Terms shall be read as being followed by “without limitation” where appropriate.
For further inquiries, you may contact us at the following email address: firstname.lastname@example.org
Effective Date of Terms: 2019/3/1