myDevices End User License Agreement
Last Updated: May 2018
We are myDevices, Inc. (“myDevices”, “our”, “us” or “we”).
Your access to, and use of, all myDevices Internet of Things software products (collectively, the “Products”) via the Web App or Mobile Apps (as each such terms are defined below), is subject to the terms and conditions set forth in this End User License Agreement (this “EULA”), as well as the:
Sales Terms set forth at (“Sales Terms”);
Return, Refund and Limited Warranty set forth at (“Warranty”); and
You may view the most current version of each of these documents at URL [https://mydevices.com/legal].
Capitalized terms used, but not expressly defined, herein shall have the definition and meaning given to such capitalized term in the Terms of Service, or elsewhere in the Agreement. myDevices reserves the right, in its sole discretion, to modify, amend or supplement any term or condition of the Agreement at any time with or without notice. If you continue to use the Services after any such modifications, amendments or supplements are made, you are then accepting and agreeing to be bound by them.
BY CLICKING “I ACCEPT” OR BY ACCESSING AND USING THE SERVICES (AS DEFINED BELOW), YOU ARE AGREEING TO ALL OF THE TERMS SET FORTH BELOW IN THIS EULA AND IN THE OTHER DOCUMENTS MAKING UP THE AGREEMENT.
This EULA is governed by the Dispute Resolution and Arbitration Provision, including a Class Action Waiver, that is set forth in the Terms of Service (located at URL [_____________]) in the Section entitled “Dispute Resolution and Arbitration”, that affects your rights under this EULA with respect to “Disputes” (as defined in the Terms of Service) you may have with myDevices. You may opt out of the binding individual arbitration and class action waiver as provided in the Terms of Service.
1. Products; Subscription to Services: myDevices provides access to the Products through both: (1) a website located at [www.myDevices.com] and related domains (collectively the “Web App” and the websites are collectively, the “Sites”), and (2) software that may be downloaded to a mobile device (the “Mobile Application(s)”). Collectively, the Sites, Web App, Product, and Mobile Apps are referred to in these Terms as the “Services”. Your access and use of the Services constitutes your agreement to be bound by this EULA and the Agreement, which establishes a contractual relationship between you and myDevices. myDevices only offers subscriptions and licenses to access and/or use the Services and Products and never sells or otherwise transfers ownership to the Products or Services. Any use of the word “sale” or “sell”, or similar words which could be construed as transferring ownership, shall only be construed herein as transferring a license to use and/or access unless the context requires otherwise.
2. Subscriber Representation; Registration and User Accounts: You represent and warrant that (a) if you are an individual, you are at least 18 years old and otherwise legally competent in all respects to enter into and be bound by this Agreement or (b) if you are an entity, you are a corporation, limited liability company, partnership or other legal entity in good standing, and possess all legal authority and power to enter into and be bound by this Agreement. If you are a legal entity, you hereby represent and warrant that you have the authority to and do hereby bind your entity and all individuals employed or engaged by your entity that may use the Services. If you are under 18 but are at least 13 years old you agree that you are using the Services with the consent of your legal guardian. If you are not at least 13 years old, you may not use the Services at any time or in any manner or submit any information to myDevices or the Services.
To create an account to access and use the Services, you must submit certain information as prompted when you first access the Services through the registration page on the Mobile Application or our Sites, such as your name, email address, phone number, zip code/postcode, and address. You may be prompted to provide additional optional information during setup which is not required to register for an account but may be necessary to provide you with full Services, to provide you with a trial of premium or other subscription-only services, or might be helpful to myDevices in providing you with a more customized experience. This information could include, for example, payment information, which would be processed in accordance with myDevices’ Sales Terms.
As part of the registration process, you will create a password that will allow you to log in to the Services. You are responsible for maintaining the confidentiality of your password and for all activities that occur on your account. You agree not to share your password, let others access or use your password, or do anything else that might jeopardize the security of your password. All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete, and up to date. You may change, correct, or remove any information from your account by either logging into your account directly and making the desired changes or contacting myDevices’ support team.
myDevices does not verify the accuracy or ownership of the data or information submitted from your Devices to the Services. You alone are responsible for determining: (a) the identity of those to whom you grant access to your Devices, and (b) the type, character, amount and nature of the data submitted from your Devices to the Services.
You can view some of the Other Software Terms covering Other Software you may choose to interface with the Products and Services at URL [_______________].
5. Services License & Restrictions; IP Rights: As long as you pay all amounts owed to myDevices in connection with your purchase of a license to access the Services, myDevices grants to you a limited, non-exclusive, non-transferable license to access and use the Services that you purchased. You shall not directly or indirectly do any of the following:
(i) modify, disassemble, decompile, or reverse engineer any of the hardware or software that constitutes the Services; (ii) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Services to any third-party or use the Services on a time sharing basis or to provide any security or other services for any third party; (iii) make any copies of the software used to provide the Services; (iv) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Services; (v) delete the copyright and other proprietary rights notices on the Services; (vi) attempt to access, monitor, or use Products of other customers; (vii) access the Services in order to build a similar or competitive product; (viii) upload, transmit, or distribute any computer viruses, worms, or software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, or any other property; (x) interfere with, disrupt, or attempt to gain unauthorized access to the servers or networks connected to the Services; or (xii) violate any applicable law or regulation.
myDevices is the exclusive owner of rights and interests in and to the mark myDevices in the United States and abroad. Other trademarks, names, and logos on or available through the Services are the property of their respective owners. Unless otherwise specified in these Terms, all technology and intellectual property available or appearing on or through any of the Services, including the Mobile Apps, information, software, documents, services, content, site design, text, graphics, logos, images, and icons, are the sole property of myDevices or its licensors. All rights not expressly granted herein are reserved by myDevices.
6. Updates: From time to time, myDevices may provide updates, upgrades, patches, bug fixes, and other modifications to improve the Software and related services (“Updates”). You acknowledge that you may be required to install Updates to continue to access and use the Product and the Services. You agree and consent to Updates being automatically installed without receiving any additional notice or providing any additional consent. Any Update provided to you is made on a license-exchange basis such that you agree, as a condition for receiving an Update, that you will terminate all of your rights to use any previous version of any software related to Services. However, you may continue to use the previous version only to assist in transitioning to the Updated version. Once an Update has been released, myDevices may cease support for prior versions, without any notice to you.
7. Support; Beta Testing: Unless otherwise expressly agreed by myDevices in writing, myDevices is not obligated to provide you with any technical support services relating to the Services; however, you may order support services for an additional charge (or as otherwise expressly provided for elsewhere in the Agreement) as myDevices may offer from time to time.
If the Services that you use are pre-commercial release or “BETA” software (“Pre-release Services”), then, to the extent that any provision in this section is in conflict with any other term or condition in this EULA, this section supersedes such conflicting term(s) and condition(s) as to the Pre-release Services, but only to the extent necessary to resolve the conflict. You acknowledge that the Pre-release Services do not represent the final product from myDevices, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Consequently, myDevices disclaims any warranty or liability obligations to you of any kind whatsoever. You acknowledge that myDevices has not promised or guaranteed to you that the Pre-release Services will be announced or made available to anyone in the future, and that myDevices has no express or implied obligation to you to announce or introduce the Pre-release Services. myDevices may decide not to introduce a product similar to, or compatible with, the Pre-release Services. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Services, or any product associated with the Pre-release Services, is done entirely at your own risk. During the term of this EULA, as a condition to being allowed access to Pre-release Services, and if requested by myDevices, you will provide feedback to myDevices regarding testing and use of the Pre-release Services, including error or bug reports.
8. Changes to Terms: Our Services are constantly evolving to help us deliver exciting and useful improvements to you. myDevices may also change, update, add, or remove provisions of these Terms at any time by posting the updated Terms on myDevices’s website, by providing notice through the Services, or by emailing you of any changes. By using the Services after myDevices has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must immediately stop using the Services.
9. Termination and Suspension: These Terms continue in effect while you access and use the Services. At any time, myDevices may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms if myDevices in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines or terms. Upon termination of this Agreement, your right to use the Services will automatically terminate. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability, governing law & jurisdiction and general provisions shall survive any termination of these Terms.
myDevices may temporarily suspend the Services without notice for security reasons, system failure, maintenance and repair, or other circumstances. myDevices does not offer any specific uptime guarantee for the Services. Any termination or suspension of any Services will not result in any credit or refund of any kind except as expressly set forth herein.
If you breach this EULA, and fail to cure any breach within 30 calendar days after request from myDevices, or myDevices’s authorized representative, myDevices may terminate this EULA, whereupon all rights granted to you shall immediately cease. Furthermore, upon termination, you shall return to myDevices all copies of the software for the Services that it may have, or verify in writing that all such copies have been destroyed. We may monitor use of the Services from time to time to ensure compliance with this EULA.
10. Mobile Applications: myDevices does not warrant that the Mobile Apps will be compatible with all mobile devices. Other applications may interact with the Mobile Apps in unpredictable ways, and myDevices does not warrant against malfunctions or errors caused by such interactions. myDevices grants to you a non-exclusive, non-transferable, revocable license to use any object code copy of the Mobile Apps for one registered account on one mobile device owned or leased solely by you for your personal use in connection with the Services. myDevices and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Apps. Standard carrier data charges may apply to your use of the Mobile Apps.The following additional terms and conditions apply with respect to the Mobile Apps:
– You acknowledge that these Terms are between you and myDevices only, and not with Apple, Inc. (“Apple”) or Google, Inc. (“Google”).
– Your use of myDevices’s Mobile Apps must comply with Apple’s then-current App Store Terms of Service and Google’s then-current Google Play Terms of Service.
– myDevices is solely responsible for our Mobile Apps and the Services. You acknowledge that Apple and Google have no obligation to provide maintenance and support services with respect to our Mobile Apps.
– You agree that myDevices is solely responsible for addressing any claims by you or any third party relating to the Mobile Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile Apps fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and that all such claims are governed solely by these Terms and any applicable laws.
– You agree to comply with all applicable Other Software Terms when using the Mobile Apps.
– The parties agree that Apple and Google are third-party beneficiaries to these Terms as they relate to your license of myDevices’s Mobile Apps.
– Apple, the Apple logo, and iPhone, are trademarks of Apple, Inc., registered in the U.S. and other countries. App Store is a service mark of Apple, Inc. Android is a trademark of Google, Inc.
Although the Services are accessible worldwide, myDevices’ Services are not available to all persons or in all countries, including persons and countries prohibited by US law. If you are accessing or using the Services from an unsupported country, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
11. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. myDevices hereby disclaims all warranties (express, implied and statutory), including without limitation, all warranties (a) with respect to the Services (including without limitation the quality, availability, performance, functionality and compatability with any other service or product), (b) with respect to the quality or accuracy of any information obtained from or available through use of the Services, (c) that the Services will be uninterrupted, error-free or free of viruses or other harmful components, (d) of non-infringement, (e) of merchantability and (f) of fitness for a particular purpose. No advice, support, maintenance or information given by myDevices, myDevices ‘s representatives, authorized supporters or other users shall create a warranty. The foregoing disclaimers shall apply, without limitation, to all support and maintenance provided to you by myDevices and/or any other users. myDevices does not provide any warranties against viruses, spyware, or malware that may be installed on your devices, including mobile devices, or computers. The Services cannot eliminate occurrences of, detect or avert certain unforeseeable events, such as acts of God (e.g. fires, floods, earthquakes). Other than as expressly set forth in the Limited Warranty, myDevices makes no guarantee or warranty that the Services will eliminate, detect or avert such incidents. You release, waive, discharge, and promise not to sue or bring any claim of any type against myDevices for loss, damage, or injury relating in any way to the Services. myDevices and its licensors and suppliers make no warranty that defects will be corrected or that the Services (i) will meet your needs or requirements; (ii) will be compatible with your home network, computer, or mobile device; (iii) will be available on an uninterrupted, timely, secure, or error-free basis; (iv) will be accurate or reliable; or (v) will give notifications at any given time or at all. No advice or information, whether oral or written, obtained by you from myDevices or through the Services shall create any warranty. Human error is always possible, and the response time of police, fire, and medical emergency personnel is outside the control of myDevices. You may not receive alerts if the Internet, mobile communication or telephone services, communication lines or power is interrupted for any reason.
If any other person, including your subrogating insurer, makes any claim or files a lawsuit against myDevices in any way relating to the Products or Services, you shall indemnify, defend and hold myDevices harmless from the claim or lawsuit, including the payment of all damages, expenses, costs, and attorney’s fees.
12. LIMITATION OF LIABILITY: MYDEVICES SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE OF THE SERVICES CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT SHALL MYDEVICES BE LIABLE UNDER CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION, OR LOSS OF GOODWILL OR OPPORTUNITY) WHETHER OR NOT MYDEVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. MYDEVICES SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR TECHNOLOGY. IN ANY EVENT, MYDEVICES’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IS YOUR RIGHT TO CANCEL YOUR ACCOUNT AND/OR SUBSCRIPTION. IN NO EVENT SHALL MYDEVICES’S LIABILITY TO YOU EXCEED THE GREATER OF FIFTY DOLLARS ($50.00) OR ANY AMOUNTS ACTUALLY PAID BY YOU TO MYDEVICES FOR THE SERVICES IN DISPUTE DURING THE ONE YEAR PRECEDING THE CLAIM, WHICHEVER IS LESS. NO ACTION, REGARDLESS OF FORM, ARISING FROM, BASED ON OR RELATED TO THIS AGREEMENT OR THE PROVISION OF THE SERVICES MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER THE EVENT WHICH GIVES RISE TO THE APPLICABLE CAUSE OF ACTION. YOUR RIGHTS MAY VARY FROM STATE TO STATE, AND SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY DAMAGES AS CONTAINED IN THIS AGREEMENT. IN SUCH JURISDICTIONS, MYDEVICES’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATIONS SHALL APPLY, WITHOUT LIMITATION, TO ALL SUPPORT AND MAINTENANCE PROVIDED TO YOU BY MYDEVICES AND/OR ANY OTHER USERS.
13. Indemnification: You shall defend and hold harmless myDevices (and its owners, directors, officers, employees, affiliates, agents, representatives, successors and assigns) from and against any third party claim, action, suit or proceeding that arises from, is based on or related to your breach of this Agreement or any unauthorized use of the Services and indemnify myDevices for all losses, damages, expenses and costs (including reasonable attorneys’ fees) incurred by myDevices as a result of any such claim, action, suit or proceeding.
14. Dispute Resolution; Governing Law & Venue: This EULA is governed by the Dispute Resolution and Arbitration Provision, including a Class Action Waiver, that is set forth in the Terms of Service (located at URL [_____________]) in the Section entitled “Dispute Resolution and Arbitration”, that affects your rights under this EULA with respect to “Disputes” (as defined in the Terms of Service) you may have with myDevices. You may opt out of the binding individual arbitration and class action waiver as provided in the Terms of Service.
ANY LEGAL ACTION OR DISPUTE BASED ON, RELATED TO OR CONNECTED WITH THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE VENUE, GOVERNING LAW, DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER PROVISIONS SET FORTH IN THE TERMS OF SERVICE.
15. Reservation of Rights: myDevices reserves all rights not expressly granted to you by this Agreement.
16. Returns & Refunds: If you are not satisfied with your purchase of Products or Services, please see our Return & Refund Policy set forth [here].
17. Survival: The following provisions shall survive the expiration or termination of this Agreement: disclaimer of warranties, exclusions of damages, limitation of liability, indemnification, benefit of provisions, relationship of the parties and binding agreement, venue, governing law, dispute resolution and class action waiver, reservation of rights and all general/miscellaneous provisions.
18. Benefit of Provisions: All provisions of this Agreement that disclaim warranties, exclude damages and limit liability shall be for the benefit of myDevices and our affiliates, partners, licensors, vendors and similar parties.
19. General Terms (Modification, Entire Agreement, Waiver): If any of the terms and conditions in this EULA are found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. myDevices’ failure to enforce any of the terms of this EULA is not a waiver of such terms. This Agreement contains the entire agreement between you and myDevices with respect to the Services, and supersede all prior or contemporaneous negotiations, discussions, or agreements between you and myDevices.
20. California Consumer Notice: Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice:
California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
21. Contact Us: If you have any questions about this Agreement, you can contact us by emailing email@example.com or by mail to:
3900 W Alameda Ave Suite 1200
Burbank, CA 91505