Terms of Service Agreement
Last updated April 21, 2017
Welcome! Teforia Company (“Teforia”) sells its network-connected tea infuser, a combination of tea brewing machine and easy-to-use cloud, mobile, and device software. The Teforia infuser (“Infuser”) is equipped with software that collects data regarding the use and performance of the Infuser, as well as your tea habits, and communicates this information to Teforia to create the ultimate modern tea experience. Teforia uses some of this information to communicate with you.
IMPORTANT: THE INFUSER IS DESIGNED FOR USE WITH THE TEFORIA MOBILE APPLICATION AND CLOUD SERVICES. IF YOU DO NOT AGREE TO THIS TOS AGREEMENT, DO NOT USE THE INFUSER AND RETURN IT FOR A REFUND TO TEFORIA OR THE AUTHORIZED DISTRIBUTOR WHERE YOU PURCHASED IT.
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“TOS AGREEMENT”) CAREFULLY. BY ACCESSING OR USING OUR MOBILE APPLICATION (“APPLICATION”) IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE INFUSER AND THE APPLICATION (EACH A “SERVICE” AND COLLECTIVELY THE “SERVICES”), CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR DOWNLOADING THE APPLICATION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS TOS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH TEFORIA, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TOS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TOS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT DOWNLOADED THE APPLICATION OR THAT YOU IDENTIFIED AS THE USER WHEN YOU COMPLETED THE REGISTRATION PROCESS. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS AGREEMENT, YOU MAY NOT ACCESS OR USE THE APPLICATION OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 13 OF THIS TOS AGREEMENT INCLUDES PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT INCLUDES AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
THE TOS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE INFUSESR, THE APPLICATION, OR THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS TOS AGREEMENT.
Your use of, and participation in, certain Services or your purchase of any of our products, may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the TOS Agreement or will be presented to you for your acceptance when you sign up to use the Supplemental Services or to purchase a product. If the TOS Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service or product. The TOS Agreement and any applicable Supplemental Terms are referred to here is as the “Agreement.”
When changes are made to the Agreement, Teforia will make a new copy of the TOS Agreement at the Teforia website located at https://teleforia.com (the “Site”), and any new Supplemental Terms will be made available from within, or through, the affected Service. We will also update the “Last Updated” data at the top of the TOS Agreement. If we have made any material changes, and you are a user (“User”) who has created an account (“Account”) with us to use the Services (“Registered User”), we will also send you an e-mail to the last address you provide to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new Users of the Application or Services, and will be effective 30 days after posting of notice for Registered Users who have a registered account on the Site on the earlier of 30 days after posting of notice of such changes on the Site or 30 days after dispatch of an e-mail notice of such changes to Registered Users. Teforia may require you to consent to the updated Agreement in a specified manner before further use of the Application or Services is permitted. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Application and the Services. Otherwise, your continued use of the Application and the Services constitute your acceptance of such changes. PLEASE CHECK THE SITE REGULARLY TO VIEW THE THEN-CURRENT AGREEMENT.
1. Use of the Teforia Properties
The Application, the Software, the Site, the Services and the information, data, text, sound, photographs, graphics, video, and/or other materials available on the Site and in the Application and the Services (collectively, the “Teforia Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Teforia grants you a limited license to reproduce portions of the Teforia Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Teforia in a separate agreement, your right to use any Teforia Properties is subject to this Agreement.
a. Application License
Subject to your compliance with the Agreement, Teforia grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on mobile devices that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
b. Teforia Software
Use of any software embedded in the Infuser (“Software”) is governed by this Agreement. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, redistribution or use on a service bureau basis. You are not permitted to use or otherwise rely on the Software for any commercial or production purposes. Subject to your compliance with the Agreement, Teforia grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Agreement. Some components of the Software may be offered under an open source license that we will distribute or make available to you. There may be provisions in the open source license that expressly override some of the terms in this Agreement. Except with respect to code licensed under an open source license, the Software is proprietary software of Teforia and its licensors and you agree not to take any action or enter any agreement that would result in any contractual requirement that Teforia or its licensors make available to any third party the Software source code.
Teforia may from time to time develop patches, bug fixes, updates, upgrades and other modifications to the performance of the Services, the Application or the Software (“Updates”). By using the Services, Application or the Software, you hereby consent to the automatic downloading and installation of these Updates, which may be automatically downloaded and installed into your mobile device and Infusers, as applicable, without providing any additional notice or receiving any additional consent. If you do not want such Updates, your sole remedies (i) for Application Updates is to turn off the auto-update functionality in your mobile device settings or delete the Application from your mobile device or (ii) for Infuser Software Updates is to terminate your Account and cease use of your Infuser. If you later undo any of the foregoing (e.g. by turning on the auto-update functionality on your mobile device or restarting use of your Infuser), you understand that the automatic download and installation of Updates will start again, and you consent to such automatic Updates. To the extent that any Updates are not automatically installed, you acknowledge that you may be required to install Updates to continue use of, or access to the full functionality of, the Software, Services, Application, and Infuser and you agree to promptly install such Updates.
d. Tea Recommendations
From time to time Teforia will recommend teas or blends to you, based on the Infuser data output that we collect when you use our Infuser and Application, and any additional information (such as the name of the tea and Infuser settings, etc.) that you input into the Infuser (“Tea Recommendations”). Subject to your compliance with the Agreement, Teforia grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Tea Recommendations in electronic form, as machine instructions only, for use solely with your Infuser.
e. Certain restrictions
• the rights granted to you in the Agreement are subject to the following restrictions:
• you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Teforia Properties or any portion of the Teforia Properties;
• you shall not use any metatags or other “hidden text” using Teforia’s name or trademarks;
• you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Teforia Properties or the Tea Recommendations except to the extent the foregoing restrictions are expressly prohibited by applicable law;
• you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
• except as expressly stated herein, no part of the Teforia Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means;
• you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Teforia Properties. Any future release, update or other addition to the Teforia Properties shall be subject to the Agreement. Teforia, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Teforia Properties terminates the licenses granted by Teforia pursuant to the Agreement.
2. Additional Terms
The following Additional Terms apply to your use of the Teforia Properties or Infuser.
• Any warranties or additional purchasing terms that Teforia includes with your Infuser or any other Teforia product; and
• Any additional terms or conditions Teforia may supply from time to time.
In order to access certain features of the Teforia Properties you may be required to become a Registered User. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Teforia Properties under the laws of the United States, your place of residence, or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Teforia Properties by minors. You may not share your Account with anyone, and you agree to notify Teforia immediately of any unauthorized use of your Account or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or Teforia has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Teforia has the right to suspend or terminate your Account and refuse any and all current or future use of the Teforia Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Teforia Properties if you have been previously removed by Teforia, or if you have been previously banned from any of the Teforia Properties.
4. Purchase terms
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Teforia with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or purchase order information in order to purchase Infusers or other Teforia products. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Teforia with your credit card number and associated payment information, you agree that Teforia is authorized to immediately invoice your Account for all fees and charges due and payable to Teforia hereunder and that no additional notice or consent is required. You agree to notify Teforia immediately of any change in your billing address or the credit card used for payment hereunder. Teforia reserves the right at any time to change its prices and billing methods, either immediately upon posting on Teforia Properties or by e-mail delivery to you.
Teforia’s fees are net of any applicable Sales Tax. If your purchase of any Infusers or other products, or payments for any Infusers or other products, are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Teforia, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Teforia for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Teforia is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5. Agreed usage and limitations of Teforia services
a. Reliability of notifications
You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. Temporary suspension
The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Teforia does not offer any specific uptime guarantee for the Services.
c. System requirements
The Services will not be accessible without: (i) an Account; (ii) mobile clients such as a supported phone or tablet that is running the Application (required for some functionality); (and (iii) other system elements that may be specified by Teforia. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
d. User conduct
You warrant, represent and agree that you will not use the Teforia Properties (or permit any third party to use the Teforia Properties) to (a) take any action or (b) make available any Content on or through the Teforia Properties that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iv) constitutes unauthorized or unsolicited advertising, junk, or bulk e-mail; (v) involves commercial activities and/or sales without Teforia’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (vi) impersonates any person or entity, including without limitation any employee or representative of Teforia; (vii) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (viii) jeopardizes the security of your Teforia Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (ix) attempts, in any manner, to obtain the password, account, or other security information from any other User; or (x) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Teforia Properties or Tea Recommendations.
e. Interactions with other users
If you comment on any blogs or forums available on through the Teforia Properties, you are solely responsible for your interactions with other Users; provided, however, that Teforia reserves the right, but has no obligation, to intercede in any disputes. You agree that Teforia will not be responsible for any liabilities incurred as the result of such interactions. Teforia has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to any comments posted on Teforia Properties. You interact with other Users at your own risk. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE TEFORIA PROPERTIES. YOU UNDERSTAND THAT TEFORIA DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE TEFORIA PROPERTIES.
6. Third Party Products and Service
The Services rely on or interoperate with certain third party products and services (“Third Party Products and/or Services”). These Third Party Products and/or Services are beyond Teforia’s control, but their operation may impact or be impacted by the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on the operators of these Third Party Products and/or Services, (ii) these Third Party Products and/or Services may not operate in a reliable manner 100% of the time, and they may impact the way that Services operate, and (iii) to the fullest extent possible by law, Teforia is not responsible for damages and losses due to the operation of these Third Party Products and/or Services. Use of any Third Party Products and/or Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and/or Services.
b. Third Party Service Providers used by Teforia
You acknowledge that Teforia uses third party service providers to enable some aspects of the Services.
c. ISP, and Carrier
d. App Stores
You acknowledge and agree that the availability of the Application(s) is dependent on the third party websites from which you download the Application(s), e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that this Agreement is between you and Teforia and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Application(s) from it. You agree to comply with, and your license to use the Application(s) 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 this Agreement, the more restrictive or conflicting terms and conditions in this Agreement apply.
e. Accessing and downloading the Application from the Apple App Store
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
• You acknowledge and agree that (i) the Agreement is concluded between you and Teforia only, and not Apple, and (ii) Teforia, not Apple, is solely responsible for the App Store Sourced Application and Content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
• In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Teforia and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Teforia.
• You and Teforia acknowledge that, as between Teforia and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• You and Teforia acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Teforia and Apple, Teforia, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
• You and Teforia acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
• Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
a. Teforia Properties
You agree that Teforia and its suppliers own all rights, title and interest in the Teforia Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or the Teforia Properties.
Teforia’s name and other related graphics, logos, service marks and trade names used on or in connection with the Teforia Properties are the trademarks of Teforia and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Teforia Properties are the property of their respective owners.
c. Other Content
You acknowledge that information, data, text, software, music, sound, photographs, graphics, video, messages, tags and other materials accessible through the Teforia Properties (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Teforia, are responsible for all Content that you upload, post, email, transmit or otherwise make available through the Teforia Properties (“Your Content”) and that other uses of the Teforia Properties, not Teforia, are similarly responsible for all Content they make available through the Teforia Properties. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Teforia Properties.
d. Your Content
Teforia does not claim ownership of Your Content. However, when you post or publish Your Content on or in the Teforia Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
e. License to Your Content
You hereby grant Teforia a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Teforia Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Teforia Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Teforia, are responsible for all of Your Content that you make available on or in the Teforia Properties.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums or blogs on or in the Teforia Properties, you hereby expressly permit Teforia to identify you by your username as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Teforia through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Teforia has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Teforia a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Teforia Properties.
8. Procedure for making claims of copyright infringement
It is Teforia’s policy to terminate the Account of any User who repeatedly infringes copyright upon prompt notification to Teforia by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Teforia Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Teforia Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Teforia’s Copyright Agent for notice of claims of copyright infringement is as follows: Teforia, 465 Fairchild Drive, Suite 102, Mountain View, CA 94043 ATTN: Legal Department.
9. Term and termination
These Terms will remain in effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of this Agreement. At any time, Teforia may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate this Agreement with respect to you, if Teforia in good faith believes that you have used the Services in violation of this Agreement, including any incorporated guidelines, terms or rules. If you transfer an Infuser to a new owner, your right to use the Services with respect to that Infuser automatically terminates, and the new owner will have no right to use the Infuser or Services under your Account and will need to register for a separate Account with Teforia.
b. Effect of termination
Upon termination of this Agreement, your Account and your right to use the Teforia Properties will automatically terminate.
10. Warranty Disclaimer
a. THE WARRANTY FOR OUR INFUSER IS SET FORTH IN THE LIMITED WARRANTY THAT ACCOMPANIES THE INFUSER AND IS AVAILABLE AT www/teforia.com/warranty. THIS SECTION DOES NOT AFFECT IN ANY WAY OUR LIMITED WARRANTY OR OUR RETURN & REFUND POLICY www/teforia.com/warranty FOR THE INFUSER.
b. THE TEFORIA PROPERTIES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TEFORIA , ITS LICENSORS, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES AND AGENTS (COLLECTIVELY, THE “TEFORIA ENTITIES”) SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE TEFORIA PROPERTIES, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TEFORIA ENTITIES DO NOT WARRANT THAT THE TEFORIA PROPERTIES OR ANY PART THEREOF, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
c. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE TEFORIA PROPERTIES WILL CREATE ANY WARRANTY OR CONDITION REGARDING TEFORIA ENTITIES, OR THE TEFORIA PROPERTIES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE TEFORIA PROPERTIES IS AT YOUR OWN DISCRETION AND RISK.
d. TEFORIA MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
e. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11. Limitation of Liability
a. IN NO EVENT WILL TEFORIA ENTITIES BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE TEFORIA PROPERTIES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT TEFORIA ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. NOTWITHSTANDING THE FOREGOING, TEFORIA DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF AN TEFORIA ENTITY OR FOR (B) ANY INJURY CAUSED BY AN TEFORIA ENTITY’S FRAUD OR NEGLIGENCE.
b. TO THE FULLEST EXTENT POSSIBLE BY LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF TEFORIA ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE TEFORIA PROPERTIES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS (IF ANY) YOU HAVE PAID TO TEFORIA OR TEFORIA’S AUTHORIZED RESELLER FOR THE COMPANY PROPERTY AT ISSUE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF TEFORIA FOR (A) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF AN TEFORIA ENTITY , OR (B) ANY INJURY CAUSED BY AN TEFORIA ENTITY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
c. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
d. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
12. ALLOCATION OF RISK
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT TEFORIA HAS OFFERED THE TEFORIA PROPERTIES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TEFORIA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TEFORIA.
13. Dispute Resolution.
Please read the following arbitration agreement in this Section carefully. It requires you to arbitrate disputes with Teforia and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement
You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Teforia, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Teforia may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH TEFORIA, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST TEFORIA ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE TEFORIA IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
b. Arbitration Rules and Forum
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Teforia will pay them for you. In addition, Teforia will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Teforia will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Teforia. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial
YOU AND TEFORIA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Teforia are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Consolidated Actions
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 15(a).
f. 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Teforia, 465 Fairchild Drive, Suite 102, Mountain View, CA 94043, or at the following email address: [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Teforia username (if any), the email address you used to set up your Teforia account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
h. Survival of Agreement
This Arbitration Agreement will survive the termination of your relationship with Teforia.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Teforia makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Teforia.
14. Access outside certain countries
Although the Site is accessible worldwide, the Infusers and Services provided or accessed through or on the Site are not available to all persons or in all countries. If you choose to access the Site from outside a country in which Teforia supports the Infuser and Services listed on the Site (“Target Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Site is not designed for use in a non-Target Country and some or all of the features of the Site may not work or be appropriate for use in such a country. To the fullest possible by law, Teforia accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Site or Infusers in a non-Target Country. You will be bound by this Agreement wherever you access or use the Site or use the Services.
a. Governing law
This Agreement, whether interpreted in a court of law or in arbitration, shall be governed and interpreted by the laws of the State of California, consistent with the federal arbitration act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on contracts for the International Sale of Goods does not apply to this Agreement.
b. Entire agreement
This Agreement (including the various additional terms incorporated herein by reference) constitute the entire agreement between you and Teforia, and supersedes any and all prior agreements, negotiations, or other communications between you and Teforia, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.
In the event that any provision of the Agreement is held to be invalid or unenforceable, then: (a) such provision shall be of no force and effect and shall be severed from the Agreement; and (b) the remainder of the Agreement shall continue in full force and effect.
d. Compliance with laws
You agree to abide by all applicable laws in your use of the Site and Infuser, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions.
You may not assign this Agreement without the prior written consent of Teforia, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Teforia may assign this Agreement without restriction. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns.
f. Force majeure
You acknowledge and understand that if Teforia is unable to provide the Site or Infuser as a result of a force majeure event Teforia will not be in breach of this Agreement. A force majeure event means any event beyond the control of Teforia.
The failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Teforia’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of this Agreement.
h. Consent to Electronic Communications
Where Teforia requires that you provide an e-mail address, you are responsible for providing Teforia with your most current e-mail address. In the event that the last e-mail address you provided to Teforia is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, Teforia’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Teforia is not responsible for any automatic filtering you or your network provider may apply to email notifications. You must give notice to Teforia at the following email address: [email protected]
You may not use, export, import, or transfer Infuser, or any services accessible via the Site except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access to the Site or are using Infuser, and any other applicable laws. In particular, but without limitation, Infuser and services accessible via the Site may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using services accessible via the Site or ordering Infuser, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
16. Questions, complaints, and claims
If you have any questions, complaints or claims, please contact us by e-mailing [email protected], by writing to Teforia, 465 Fairchild Drive, Suite 102, Mountain View, CA 94043 ATTN: Customer Support, or calling (855) 832-3130. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17. Consumer complaints
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.