OVAL DIGITAL WEBSITE TERMS AND CONDITIONS OF USE
Last revised: November 30, 2016
We want you, our customer, to understand how we provide our products and services, including accessing your user account through the Site, using the OVAL Digital sensor suite, which encompass the proper sensors for detection of motion, light, moisture, temperature, proximity and also external sensors compatible with the OVAL Digital sensor suite, including the external flood detector (collectively, the “OVAL Sensor”), and using our mobile application (the “OVAL App”). Together, the OVAL App, the OVAL Sensor and our Site constitute our first class “OVAL System”.
Please read the Terms carefully. By accessing or using the site or the OVAL system in any way, including using the services and resources available or enabled via the site or the OVAL system (each a “Service” and collectively, the “Services”), clicking on the “I Agree” button, completing the registration process, and/or merely browsing the Site or OVAL System, or downloading the OVAL Digital application, you represent that: (i) you have read, understand, and agree to be bound by these Terms; (ii) you are of legal age to form a binding contract with OVAL Digital; and (iii) you have the authority to enter into these Terms personally or on behalf of the company you represent, and to bind that company to these Terms. The terms “you” and “yours” refer to the individual or legal entity you represent, as applicable. If you do not agree to be bound by the terms, you may not access or use the website, the application, or the services.
The Terms include a class action waiver and a waiver of jury trials, and require binding arbitration on an individual basis in order to resolve possible disputes. These Terms also limit the remedies that may be available to you in the event of a dispute with us.
OVAL SYSTEM SCOPE
The OVAL System uses the smart OVAL Sensors to detect and measure situations at your home (e.g. if lights have turned on or off, if a window or door is open or closed, if there are temperature variations inside your environment, an increase in humidity or if there is a water leak). The OVAL Sensors monitor and measure changes in motion, temperature, light, moisture and proximity, and sends you push, text, email, and/or preprogrammed telephone call notifications to your phone or email via the OVAL App.
Information provided thereby is not intended to be reliable or available 100% of the time, and we do not guarantee a minimum service level. The OVAL System may be subject to interruptions and failures for motives beyond OVAL Digital’s control, including but not limited to: Wi-Fi signal, Internet bandwidth, cloud service providers, wireless technology and carriers or power outages. You hereby acknowledge and agree to these limitations and therefore accept and agree that OVAL Digital is not responsible for any damages allegedly caused by delay or failure of OVAL System to relay notifications triggered by the OVAL Sensors.
In order to increase battery levels, OVAL Digital recommends occasionally turning off the sound buzzer, and/or the Light, Moisture, Temperature and Proximity Sensors when not specifically needed; while leaving the Motion and Flood Sensors always on will help to increase battery life. Additionally, due to the technology used in the batteries, the OVAL System may indicate a decrease in power output under temperature extremes, and readings will return to normality once temperature readings stabilize. Please consult our user manual for further information.
You hereby acknowledge and accept that: (i) the OVAL System is not certified by any safety or security agency to provide any kind of emergency-level response time; (ii) OVAL Digital gives no warranty or representation that the OVAL System will operate in conjunction with any kind of third-party product or service designed or intended to generate or augment safety standards or levels (e.g. alarm systems); (iii) the OVAL System is a not an emergency notification system ; (iv) that OVAL Digital is not in the business of monitoring alarm notices and that neither OVAL Digital nor its officers, directors, shareholders, subsidiaries, affiliates, agents or employees will contact or notify any authority in any event.
The OVAL System and OVAL Sensors are not intended for collaboration, augmentation or replacement of any safety measures, systems or devices, and are no substitute for your local or national law enforcement agencies or emergency services. OVAL System is not a substitute for 911 or similar emergency numbers in other countries. Always consult your local authorities for information regarding home safety measures and their improvement in your house and neighborhood.
Any and all products and services purchased through the Site are subject to changes, updates, upgrades or discontinuation or unavailability. Prices and exchange rates shown are not final and may vary without notice. First use of the OVAL System, in any manner, constitutes express acceptance of the products and services thereinto. You will be responsible for any credit card fees, courier fees, export/import tariffs and ancillary costs. In order to use our products and services you will need, at a minimum: (i) continuous Internet connection connected to the gateway with an Ethernet cable (not included); and (ii) computer/smartphone/tablet with Wi-Fi or cellular connection. OVAL Digital is not responsible for Internet Service Provider and/or mobile device carrier connection issues, which may impair connection to and use of the OVAL System thereof.
You agree that you are authorized to visit, view and use the information on the Site for informational purposes, and for registering, accessing and utilizing the OVAL Digital Services only. You are prohibited from duplicating, downloading, publishing, modifying or otherwise distributing, in whole or in part, any content and materials on the Site (including, without limitation, any text and images resident on the Site) without OVAL Digital’s express written permission. All pages and any material contained on the Site are the property of OVAL Digital, or are owned by a third party and are used by OVAL Digital under license, and are protected by U.S. and international copyright and other intellectual property laws.
You agree not to, and will not undertake, motivate, or facilitate the use or access of the Site and/or The OVAL APP to:
- Help, motivate, or enable others to infringe these Terms.
- Plagiarize or infringe the intellectual property rights of a third party.
- Use any automated process to access or use our services or any process, whether automated or manual, to capture data or content from any of our services for any reason.
- Disrupt the normal flow of dialogue and/or exchange on the Site.
- Upload, post or otherwise disseminate any content that: (i) infringes or violates the intellectual property rights of any third party, including any trademark, copyright, trade secret, moral rights, ancillary rights or other rights therefrom, or causes or results in the violation of any applicable law or regulation, (ii) in any way exploits the Site other than as specifically sanctioned by us; (iii) encourages any conduct that could promote or cause discrimination, racism, hatred, harm or violence against any individual or group of persons; (iv) threatens minors in any manner; and/or (v) promotes or encourages illegal, fraudulent or inappropriate activities.
- Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Site; and/or promotes or disseminates any content that is or may be considered obscene, pornographic, inappropriate or otherwise objectionable.
- Delivers or attempts to deliver, any unsolicited advertising, electronic email, promotion, spam or chain letters.
- Collect, receive, transfer or disseminate any personally identifiable information of any user of the Site without the express authorization of the holder. Please see our Policy for more information.
- Collect, receive, transfer or disseminate any content that is illegal or unlawful that would constitute, encourage or provide instructions for a criminal offense, or otherwise create liability or violate any local, state, national or international law.
- Deliver unsolicited promotions, political campaigning, or commercial messages (SPAM) or any chain messages or any content designed to deceive or trick the users of the Site.
- Impersonate or misrepresent any affiliation with any legal entity or person.
You further acknowledge and agree that you will treat as strictly private and confidential, any username or password which you receive from OVAL Digital and any and all information to which you have access through our Services, and that you will not cause or permit any such information to be communicated, copied, or otherwise divulged to any other person whatsoever. Any violation of this provision may result in immediate suspension and/or termination of your access to the Site and use of our Services, without refund, reimbursement, or any other credit.
You are also responsible for any and all of your actions with other users of our Services, and we reserve the right, but not the obligation, to monitor and moderate such activities.
OVAL Products License. OVAL Digital grants you a limited, non-exclusive, revocable and non-transferable license to utilize and access the Site, the Services, the OVAL App and the OVAL System’s assorted sensor, gateway, hardware, software and firmware technology (collectively, the “OVAL Products”), for your personal, non-commercial purposes, and under the requirements and restrictions contained in these Terms. You are prohibited from duplicating, re-engineering, reverse engineering, modifying or otherwise using the OVAL Products, in whole or in part, without OVAL Digital’s express written permission. For the avoidance of doubt, this prohibition includes any and all hardware, firmware and software included in the OVAL System. We may also impose limits on certain services or restrict access to all or certain portions of the Site, without notice or liability. OVAL Digital does not grant any express or implied right to you under any patents, trademarks, copyrights or trade secret information; and you shall have no right, either directly or indirectly, to own, use, loan, sell, rent, lease, license, sublicense, assign, copy, translate, modify, adapt, improve or create any new or derivative works from, or display, distribute, perform or in any way exploit the Site or the OVAL Products, in whole or in part.
OVAL App License. The license for the OVAL App is granted under the terms and conditions set forth in these Terms, and is also pursuant to the End User License Agreement of OVAL Digital and the mobile application store guidelines, policies and terms of Apple Inc and Google Inc, among other companies engaged by us from time to time.
Open Source License. Part of the computer code incorporated into the OVAL Products may be licensed by third parties under “open-source” or “public-source” software licenses (e.g. the GNU General Public License, the MIT License, the Apache License and the Berkeley Software Distribution License). Henceforth, any and all open source software thereinto is not licensed under these Terms, but instead licensed under the respective open source software licenses. Such open source software licenses are available online, and you ought to be aware of their terms, which you must comply with.
INFRINGEMENT OF THESE TERMS
You understand and agree that OVAL Digital may, in its sole discretion, with or without prior notice, terminate your access to the Site, provision of Services for the OVAL Products, and/or exercise any other available remedy if we determine that you have: (i) breached any provision of the Terms; (ii) violated OVAL Digital’s rights; (iii) infringed the rights of third parties; or (iv) violated any applicable laws or regulations. You acknowledge and agree that monetary damages may not adequately compensate OVAL Digital for your non-compliance with the Terms, and you therefore consent to injunctive or other equitable relief in the case of such violations. You further agree that OVAL Digital may release certain information about you if we are required to do so by applicable laws or a valid subpoena.
You agree to indemnify, defend and hold harmless OVAL Digital, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Site, from and against any and all losses, expenses, damages and costs, including reasonable attorneys’ fees, incurred in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of the Site and/or the OVAL Products violates these Terms, any applicable law or regulation, or the rights of any third party.
LIMITATION OF LIABILITY, EXCLUSIVE REMEDY, INDEMNITY
It is impractical and extremely difficult to determine the actual damages, if any, that may result from a failure by OVAL Digital to perform any of its obligations herein. Under no circumstances will you attempt to hold OVAL Digital or any of its officers, directors, shareholders, subsidiaries, affiliates, agents or employees liable for any consequential or incidental damages, including without limitation, damages for personal injury, damages to property, lost profits, business interruption, loss of information, loss of business, loss of use or lack of availability of computer resources, lost or corrupt data, re-procurement amount, anticipated savings, wasted expenditure, or other commercial or economic loss. The entire risk, as to the results and performance of the Services and OVAL System, is assumed by you to the greatest extent permissible by applicable law. If, notwithstanding the provisions of this paragraph, OVAL Digital is found liable for loss, damage, injury or death under any legal theory relating in any way to the services and/or OVAL products provided by OVAL Digital, OVAL Digital’s liability to you shall be limited to a sum equal to 10% (ten percent) of the annual service charge paid for the OVAL System (if any), or USD$500 (Five Hundred United States Dollars), whichever amount is less. This agreed-upon amount is not a penalty, but rather, it is your sole remedy. Notwithstanding the foregoing, your sole remedy for dissatisfaction with the Site, related Services and/or linked websites is to stop using the Site and/or those Services.
If any other person, including your subrogating insurer, makes any claim or files any lawsuit against OVAL Digital in any way related to the equipment or services provided by us to you, you agree to indemnify, defend and hold OVAL Digital harmless from any and all such claims and lawsuits, including the payment of all damages, expenses, costs and attorneys’ fees. Your duty to defend is separate and distinct from your duty to indemnify and hold harmless and arises upon the assertion of a claim or demand against OVAL Digital and regardless whether OVAL Digital has been found liable or whether OVAL Digital has incurred any expense. The indemnifications obligations contained in this Section shall not apply to the extent that any claim against OVAL Digital arises as a result of or in relation to any OVAL Digital content or any alterations or modifications of the Services or OVAL System not provided by OVAL Digital.
DISCLAIMER OF WARRANTIES AND GUARANTEES
OVAL Digital cannot and does not guarantee or warrant that any products, software, or files, whether purchased directly or indirectly from OVAL Digital or made available for downloading through this site will be free of infection or viruses, worms, trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures to satisfy your particular requirements for accuracy of data and output. You assume total responsibility and risk for your use of the site and OVAL products.
The materials and information contained on the Site may contain technical inaccuracies and/or typographical errors. OVAL Digital does not warrant the accuracy or completeness of the materials or the reliability of any advice, opinion, statement or other information displayed or distributed through the Site. You acknowledge that any reliance on any such opinion, advice, statement, memorandum, or information shall be at your sole risk. OVAL Digital reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the site. OVAL Digital may make any other changes to the site, the materials and the products, programs, services or prices (if any) described in the site at any time without notice.
This Site and the information and materials on the site are provided “as is” and “as available”, without warranties, representation, condition or guarantee of any kind, whether express, statutory or implied and OVAL Digital does not make any express or implied warranties, representations, conditions, or guarantees of description or endorsements whatsoever including, without limitation, warranties of title or non-infringement, or the implied warranties of merchantability or fitness for any particular purpose, OVAL System’s measures, results delivered and data collected (or not), operation, integration, adequacy, suitability, title, non-infringement, non-interference with use and/or enjoyment, with regard to the Site, the OVAL Products and/or any merchandise, information or Service provided through the Site and OVAL Digital shall not be liable for any cost or damage arising either directly or indirectly from any such transaction. Some jurisdictions do not allow for the exclusion of implied warranties, so the above exclusions may not apply to you.
Neither OVAL Digital nor its officers, directors, shareholders, subsidiaries, affiliates, agents or employees warrant that the Services or any part or aspect of the OVAL Products and any related software or component shall be error-free, uninterrupted, secure, produce particular results, satisfy or meet Reseller’s or any end-user’s requirements, nor that they will operate on any hardware and/or software platforms, or will function uninterrupted, error free or that any defects will be corrected or that the information obtained therefrom shall be reliable or unobjectionable. No advice or information given by OVAL Digital or its officers, directors, shareholders, subsidiaries, affiliates, agents or employees shall create a warranty.
OVAL Digital’s equipment and services do not cause and cannot eliminate occurrences of the events they are intended to detect (but not to avert), including, but not limited to: water leaks, fires, blizzards, electric shock, unauthorized entry or exit to a location, floods, burglaries, robberies, gas leaks, and medical problems, lost pets, people or property.
The OVAL System may occasionally present inaccurate battery readings, which may temporarily impair or even completely preclude the functionalities of the OVAL System; thus, you as a consumer ought to be aware of the battery charge levels and recommended fabricant expiration date of batteries, pursuant to their replacement. In addition, the OVAL System ships with industrial strength, double sided adhesive strips, which must be used to firmly secure the Sensors in a proper place (e.g. improper adhesion may cause a Sensor to fall and, thus, cause damage to the Sensor; or the adhesive tape may cause damage to user’s home furnishings such as wallpaper or paint). OVAL Digital makes no guaranty or warranty thereof for any user actions. Please take into account that the External Flood Sensor and flexible cable is also part of the overall OVAL System, and its proper location near water sources and/or likely water sources is paramount to proper water leak detection by the OVAL System. Henceforth, OVAL Digital does not undertake any risk that you or your property, or the person or property of others, may be subject to damages, injury or loss if any event occurs. The allocation of such risk remains with you, not OVAL Digital. You release, waive, discharge and promise not to sue or bring any claim of any type against OVAL Digital for loss, personal property damage, personal injury or death relating in any way to the OVAL System (including the External Flood Sensor) and the Services provided by OVAL Digital.
You understand that OVAL Digital is not an insurer and that OVAL Digital is not providing you with insurance of any type. The amounts you pay OVAL Digital for its products and/or Services are not insurance premiums and are not related to the value of your property, anyone else’s property located in your premises or any risk of loss at your premises. Instead, the amounts OVAL Digital charges you are based solely upon the value of the equipment and services OVAL Digital provides and upon the limited liability OVAL Digital assumes under this contract. If you want insurance to protect against any risk of loss at your premises, you must purchase it. In the event of any loss, damage, injury or death, you will look exclusively to your insurer and not to OVAL Digital to compensate you or anyone else. You release and waive for yourself and your insurer all subrogation and other rights to recover against OVAL Digital arising as a result of the payment of any claim for loss, damage or injury. You understand and agree that: (i) you will only be permitted to pursue claims against OVAL Digital on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and; (ii) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
ADDITIONAL CHARGES AND OFFSET RIGHTS
You agree to pay all construction/alarm use permit fees, all directly or indirectly imposed false alarm fines, fees or charges, all telephone or signal transmission company charges, and all other assessments, fees and charges related to the OVAL Products. If OVAL Digital owes you money when your then-current subsection term ends (if any), OVAL Digital has the right to deduct from any refund owed you: (i) service charges for thirty (30) days (if you fail to give the required written termination notice set forth above); (ii) any contract termination charges that you may owe as set forth above; and (iii) any other additional charges, amounts or deposits that you owe OVAL Digital. If the amount of the deduction equals or exceeds the amount that OVAL Digital owes you or if OVAL Digital owes you a credit of five dollars ($5.00) or less, OVAL Digital will not be obligated to refund any amounts to you.
Please note that the Site and the OVAL System may contain links to third-party websites not owned or operated by OVAL Digital. We make no representations or warranties whatsoever about any other website, or the contents thereof, that you may access through the Site. When you access a third-party website, please understand that you are doing so at your own risk and that it is your responsibility to take all protective measures to guard against viruses or other destructive elements. OVAL Digital has no control over such third-party websites, and therefore is not responsible for their contents. Any links to third-party websites are provided to you for your convenience only, and the inclusion of such links does not mean that OVAL Digital endorses or accepts any responsibility for the content, or the use, of the linked website. Including these links does not imply that OVAL Digital is affiliated or associated with, or is legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links, or that any linked third-party website is authorized to use any trademark, trade name, logo or copyright symbol of OVAL Digital or any of its affiliates or subsidiaries.
App Stores. You hereby acknowledge and agree that the OVAL App and the Services of the OVAL System are also dependent on certain third-party software and systems (e.g. Apple Inc.’s App Store or Google Inc.’s Google Play (the “App Stores”). Henceforth, you acknowledge and agree with OVAL Digital that the terms and conditions, piracy policies, marketplace terms, content guidelines, service level agreements and other agreements are between you and the applicable App Stores.
OVAL Digital hereby reserves the right to update, modify, change, amend, terminate or discontinue the Site, the Terms and/or the Policy, at any time and at its sole and final discretion. OVAL Digital may change the Site’s functionalities and (any) applicable fees at any time. Any changes to these Terms will be displayed in the Site, and we may notify you through the Site, the OVAL System or by email. Please, refer to the date shown below for the date where effective changes were last undertook by us. Your continued use of the Site after the last effective date of amendment to these Terms – either by registration or simple use – indicates your acceptance of any modifications thereto.
TRADEMARK, COPYRIGHT AND PROPRIETARY INFORMATION NOTICE
The trademarks, trade names, logos, service marks, trade dress and product configurations and packaging displayed on this, and related, web sites operated by OVAL Digital, Inc. and its affiliates, and the OVAL app (the “OVAL Digital IP“) are registered and unregistered trademarks of OVAL Digital, Inc. or its affiliates, or the property of their respective owners.
All of the content on the pages of the OVAL Digital IP, the manner of displaying the pages, and all of the materials downloadable therefrom are copyright-protected intellectual property owned by, or licensed to, OVAL Digital and/or its affiliates; and may only be used for personal, informational, non-commercial purposes. The content and materials contained in the OVAL Digital IP may not otherwise be copied, modified, distributed, reproduced or reused without the express written permission of OVAL Digital. In particular, any materials contained on the OVAL Digital IP that are marked as, or otherwise appear to be, OVAL Digital proprietary and/or trade secret information may not be copied or distributed in whole or in part in any form without the prior written consent of OVAL Digital.
The trademarks, content, and other materials on the OVAL Digital IP are protected by the intellectual property laws of the U.S. and other countries. OVAL Digital will protect its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution where warranted.
User Content. Through the simple use of our Site and any Services therein, you hereby grant OVAL Digital an unlimited, non-exclusive, assignable, royalty-free, perpetual, irrevocable, for all the world, sub-licensable right and license to use, reproduce, adapt, create derivative works from, distribute and display any content you may upload or transfer throughout the Site, the OVAL System and the OVAL Products, when posting messages, uploading files, inputting data or otherwise submitting any kind of content to us, and you hereby represent and warrant to OVAL Digital that you have all the rights, licenses, authorizations and authority necessary to grant the abovementioned license.
Feedback. You hereby grant to OVAL Digital 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, ideas, comments, improvements or suggestions regarding the Site and the OVAL System.
TAKEDOWN NOTICES, INFRINGEMENT
In compliance with the Digital Millennium Copyright Act (‘DMCA’), OVAL Digital undertakes copyright infringement seriously, and is ready to remove any content posted upon duly notice and request by a copyright holder. If you believe that any content or other material provided through the Site allegedly infringes the copyright of you or of a third party, please notify us of your claim to: email@example.com (subject: “Takedown Request”). OVAL Digital may remove any content if it believes or has reason to believe such content infringes on another’s copyright, without prior notice and at any time and at its sole discretion. We may also disable your or any user ability to use the Site or terminate your access thereof.
The notification must be in writing and must contain the following information, at a minimum: (i) a signature and identification of the title holder and/or the person authorized to act; (ii) a description of the copyrighted work that allegedly has been infringed; (iii) contact information, such as your address and your email address (for us to deliver our response to you); and (iv) a statement indicating that the information provided in the notice is true and accurate.
This Site is operated and administered from within the United States of America (‘USA’). Use of this Site shall be governed by all applicable Federal laws of the USA and the laws of the State of New Jersey, without giving effect to its conflict of law provisions.
Minors. OVAL Digital duly undertakes the protection of the rights of minors and children, and thereby encourages parents, legal guardians and responsible adults to be actively involved in the safe use of the Internet. You hereby represent and warrant that you are at least eighteen (18) years of age, or older, as of the date of first access to our Site and, if you are under such age, are using the Site under the direct supervision of your parent, legal guardian or responsible adult. You hereby represent and warrant that you will not provide OVAL Digital with personally identifiable information of children under the age of eighteen (18) without the consent of their parents or legal guardians.
Upon the terms and conditions of 47 U.S.C. Section 230(d), OVAL Digital hereby informs you about the commercial availability of parental control mechanisms which may assist you in limiting access to minors of material that is or may be considered harmful.
In compliance with the terms of the Children’s Online Privacy Protection Act (‘COPPA’), OVAL Digital does not knowingly collect any kind of information from any person under the age of thirteen (13).
Payment processing systems. We use third-party payment processors such as credit card and/or PayPal to bill you through a payment account linked to your account on the Site, for any purchases made through the use of the Site. The processing of payments for sellers and buyers will be subject to the fees, terms, conditions and privacy policies of such payment processors. OVAL Digital is not responsible for any and all errors by the payment processors.
Entire Agreement. In the event that any provision of the Terms are found by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so as to affect the intent of the Terms, and all remaining provisions shall otherwise remain in full force and effect. The Terms constitute the entire agreement between OVAL Digital and you pertaining to the subject matter hereof.
Confidentiality. “Confidential Information” shall mean the hardware, software and firmware embedded within OVAL System and all other information disclosed to you that OVAL Digital characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of the Terms, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of OVAL Digital. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify OVAL Digital in writing promptly upon discovery of any unauthorized use or disclosure of Confidential Information, and will cooperate with OVAL Digital in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) promptly notify OVAL Digital prior to such disclosure to allow OVAL Digital an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with OVAL Digital in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
Electronic Communications. The communications between you and OVAL Digital use electronic means, whether you visit the Site or send OVAL Digital e-mails, or whether OVAL Digital posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from OVAL Digital in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that OVAL Digital provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Release. You hereby release OVAL Digital and its subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the OVAL System or any of our Sites. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.
Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without OVAL Digital’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. OVAL Digital shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Compliance. If you believe that OVAL Digital has not adhered to the Terms, please contact OVAL Digital by contacting us at firstname.lastname@example.org or call +1 201-825-7676. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Limitations Period. YOU AND OVAL DIGITAL AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS OR OUR SITES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Headings. The section and paragraph headings in these Terms are for convenience only and will not affect their interpretation.
No Relationship. You and OVAL Digital are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms.
Exchange rates. Currency exchange rates displayed on the Site are based on various sources and should only be used as reference. Actual exchange rates will vary depending on the location, bank, credit card and/or payment processing systems used by you.
Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Arbitration Agreement carefully. It is part of your contract with OVAL Digital and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by OVAL Digital that cannot be resolved informally shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and OVAL Digital, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (a “Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to OVAL Digital should be sent to: 1000 Lake Street, Bldg D, Ramsey, NJ 07446 USA. After the Notice is received, you and OVAL Digital may attempt to resolve the claim or dispute informally. If you and OVAL Digital do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled. The amount of the award shall also be limited by the “LIMITATION OF LIABILITY, EXCLUSIVE REMEDY, INDEMNITY” section of these Terms to the extent applicable.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of OVAL Digital’s business premises, unless you reside outside of the USA, and unless the parties agree otherwise. If you reside outside of the USA, the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings, as detailed herebelow. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, reputable video conference based tools and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or OVAL Digital pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and OVAL Digital, and the dispute 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 AAA Rules, and the Terms. 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 OVAL Digital.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and OVAL Digital in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND OVAL DIGITAL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.(i) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of these Terms shall continue in full force and effect.
(j) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with OVAL Digital.
(l) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(m) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(n) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in the City of Ramsey, State of New Jersey, USA, for such purpose.
Export Control. You may not use, export, import, or transfer Our Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Our Properties, and any other applicable laws. You acknowledge and agree that products, services or technology provided by OVAL Digital are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer OVAL Digital products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
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.
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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OVAL Digital, Inc.
1000 Lake Street, Bldg D
Ramsey, NJ 07446