Terms - PIVOT Yoga

Terms of Service

This Terms of Service (this “Agreement”) constitutes a legally binding contract between TuringSense, Inc., a Delaware corporation with an address of 4675 Stevens Creek Blvd #101, Santa Clara, CA 95051 (“TuringSense”, “Company”, “we”, “us”, “our”) and you with respect to your use of our services, application program interfaces, websites, or mobile applications, including PIVOT Yoga (collectively, the “Service”). More information about the Service may be found at http://www.pivot.yoga.

It is important that you carefully read and understand the terms and conditions of this Agreement. BY accessing or using the company website, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE company website.

In order to access other portions of the Service, you must first register or link an account (“Account”). BY USING THE SERVICE, OR BY INDICATING YOUR ASSENT TO THIS AGREEMENT BY REGISTERING YOUR ACCOUNT, CLICKING “I ACCEPT” OR ANY SIMILAR MECHANISM, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE OR REGISTER AN ACCOUNT WITH TURINGSENSE.

If you access or use the Service or register an Account on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to this Agreement and that it is fully binding on them. In such case, the term “you,” as used in this Agreement, will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Service. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.

Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and the Company have against each other are resolved (see Section 11 (Limitation of Liability), Section 15 (Dispute Resolution), and Section 16 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 15(D). Unless you opt-out: (A) you will only be permitted to pursue claims against the Company on an individual basis, not as part of any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

1. Changes to this Agreement

We reserve the right to, at any time, with or without cause:

change the terms and conditions of this Agreement;
change the Service, including eliminating or discontinuing any service or other feature of the Service;
deny or terminate your use of and/or access to the Service.

We will notify you of any material changes to the terms and conditions of this Agreement of to any service or other feature of the Service. You must accept such changes in order to continue to use and access the Service. If you do not accept such changes, your use and/or access to the Service will be terminated.

2. Use of the Service

Before using the Service, you may need to register with the Company and create an Account. We reserve the right to decline to provide the Service to any person for any or no reason. If and when you register with or provide information to the Company, you agree to: (a) provide accurate, current, and complete information as prompted (including your e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Service. By providing the Company with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including any notices required by law.

You are solely responsible for the activity that occurs on your Account. You must keep your Account credentials (including username and password) secure at all times. You may not share your Account with any third parties without the Company’s prior written consent unless such third party has separately entered an agreement with the Company permitting it to access your Account. You must notify the Company immediately of any breach or suspected breach of security or unauthorized use of your Account. The Company will not be liable for any losses caused by any unauthorized use of your Account.

You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.

3. Rules Governing Your Use of the Service

You may not use the Service, or assist or encourage any other party, to engage in any of the following prohibited activities:

Copying, framing or mirroring any part of the Service;
Accessing the Service for purposes of monitoring its availability, performance or functionality;
Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Service or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to the Company;
Publishing, transmitting, distributing or storing content, material, information or data that: (a) is illegal, obscene, defamatory, threatening, harassing, abusive, or hateful or that advocates violence; (b) is harmful to or interferes with the Service or any third party’s networks, equipment, applications, services or websites (e.g., viruses, worms, Trojan horses, etc.); (c) infringes, dilutes, misappropriates or otherwise violates any privacy, intellectual property, publicity or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets or other proprietary information (including unauthorized use of domain names); or (d) is fraudulent or contains false, deceptive or misleading statements, claims or representations (such as “phishing”);
Attempting to disrupt, degrade, impair or violate the integrity or security of the Service or the computers, services, Accounts or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of the Company internet protocol space;
Avoiding payment of incurring charges or fees payable by you with respect to the Service;
Distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
Using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company than a human can reasonably produce in the same period of time by using a conventional web browser;
Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
Collecting or harvesting any personally identifiable information, including Account names and information about users of the Service, from the Service;
Using the Service for any commercial solicitation purposes;
Accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
Submitting to the Service or to the Company any personally identifiable information, except as necessary for the establishment and operation of your Account;
Submitting to the Service or to the Company any information that may be protected under the Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”) or any other information that may be protected from disclosure by applicable law;
Bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
Violating any applicable law, statute, ordinance or regulation, or encouraging any conduct that could constitute a criminal offense or give rise to civil liability;
Removing any copyright, trademark or other proprietary rights notices contained in or on the Service;
Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Service’s servers or any data not intended for you.

Improper use of the Service may result in termination of your access to and use of the Service and/or civil or criminal liabilities. You agree to use the Service in accordance with all applicable laws.

4. Intellectual Property

A. Your Rights. Subject to the terms and conditions of this Agreement (including any restrictions on any applicable authorization or order form), you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. TuringSense reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel or otherwise.

B. TuringSense Rights.

User Content. You expressly grant, and you represent and warrant that you have all rights necessary to grant, to TuringSense a royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, distribute, modify, reproduce, publically display, publically perform and create derivative works of any information, data, materials, photographs, images or content you provide to TuringSense (“User Content”) for the purposes of (a) providing the Service, or (b) developing, maintaining, supporting or improving the Service. You agree that TuringSense may store User Content in order to provide the Service. TuringSense aggregates User Content with other data and also collects technical information and data about your use of the Service. You expressly agree that TuringSense may use any aggregated and anonymized data for any purpose during or after the term of this Agreement, including, without limitation, to develop and improve the Service or otherwise develop and improve TuringSense services and products.
Feedback and Improvements. You may choose to, or we may invite you to, submit comments, suggestions, feedback or ideas about the Service, including, without limitation, about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction. We are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. TuringSense will be free to use, disclose, reproduce, license, distribute, modify, perform, display and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, TuringSense does not waive any rights to use similar or related ideas previously known to TuringSense, or developed by its employees, or obtained from sources other than you.

C. Proprietary Rights. The Service is owned and operated by TuringSense, and the Service (and any intellectual property and other rights relating thereto) is and will remain the property of TuringSense and its licensors and suppliers. The Service is protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. The Service may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by authorized representatives of TuringSense or, if so indicated in writing by TuringSense, by its licensors or suppliers. Use of the Service for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, logos and service marks displayed on the Service (collectively, the “TuringSense Trademarks”) are the registered and unregistered trademarks of TuringSense, TuringSense’s licensors and suppliers and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any TuringSense Trademark(s) without the express written permission of TuringSense, TuringSense’s licensors or suppliers or the third-party owner of any such TuringSense Trademark. Subject to the rights granted to TuringSense in this Agreement, as between you and TuringSense, you retain all right, title and interest in and to your User Content.

D. User Content. You are solely responsible for any User Content that you submit, post, or display on or via the service. You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of your User Content on or through the Service does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Service. You agree that TuringSense is not responsible for, and does not endorse, User Content posted within the Service. TuringSense does not have any obligation to prescreen, monitor, edit or remove any User Content. If your User Content violates this Agreement, you will bear legal responsibility for that User Content. As between you and TuringSense, any User Content will be non-confidential and non-proprietary, and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with TuringSense is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place TuringSense in a position that is any different from the position held by members of the general public, including with regard to your User Content. None of your User Content will be subject to any obligation of confidence on the part of TuringSense, and TuringSense will not be liable for any use or disclosure of any User Content you provide.

E. Reporting Copyright and Other IP Violations. The Digital Millennium Copyright Act (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. TuringSense also reviews claims of trademark infringement. If you believe in good faith that materials hosted by TuringSense infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it be blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work or trademark claimed to have been infringed on (or, if multiple copyrighted works or trademarks located on the Service are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow TuringSense to locate the material on the Service; (d) the name, address, telephone number, and e-mail address (if available) of the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright or trademark owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please be advised that TuringSense will not respond to complaints that do not meet these requirements. If TuringSense determines that the materials alleged to infringe your copyright or trademark rights do not require removal, TuringSense will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information: (a) your name, address, and telephone number; (b) the source of the content that was removed; (c) a statement under penalty of perjury that you have a good-faith belief that the content was removed in error; (d) a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located; or, if your address is outside of the United States, for any judicial district in which TuringSense may be found, and that you will accept service of process from the person who provided the original complaint; and (e) a physical or electronic signature (for example, typing your full name).

Notices and counter-notices with respect to the Service must meet the then-current statutory requirements imposed by the DMCA (see http://copyright.gov/title17/92appb.html) and should be sent to the agent identified below. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.

Agent to Receive Notices of Claimed Infringement:

Turingsense DMCA Agent
dmcaagent@turingsense.com

5. Third-Party Links

The Service may contain links to other websites for your convenience. We do not control the linked websites or the content provided through such websites, and we have not reviewed, in their entirety, such websites. Your use of linked websites is subject to the privacy policies and terms of use established by the specific linked website, and we disclaim all liability for such use. The fact that we offer such links does not indicate any approval or endorsement by us of any linked website or any material contained on any linked website, and we disclaim any such approval or endorsement.

6. Linked Services

The Service may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services, including without limitation, other websites, apps and/or platforms to which User Content has been shared or embedded using the Service (hereinafter “External Services”).

TuringSense does not have or maintain any control over the External Services and is not and cannot be responsible for their content, operation or use. By linking or otherwise providing access to any External Services, TuringSense does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.

External Services may have their own terms of use and/or privacy policy and may have different practices and requirements than TuringSense with respect to the Service. You are solely responsible for reviewing any terms of use, privacy policy or other terms governing your use of these External Services, which you use at your own risk. You are advised to make reasonable inquiries before entering into any transaction, financial or otherwise, and whether online or offline, with any third party related to any External Services.

When using External Services, you are solely responsible for protecting yourself from fraud and for protecting your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any External Services.

TuringSense disclaims any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against TuringSense with respect to the content or operation of any External Service

7. No Use by Children Under 13

You hereby affirm that you are over the age of thirteen (13), as the Service is not intended for children under 13. If you are under 13 years of age, then you may not use the Service. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement.

8. Privacy Policy

Your use of the Service shall be subject to TuringSense’s Privacy Policy (the “Privacy Policy”) located here: http://www.pivot.yoga/privacy/. You expressly consent to the practices disclosed in the Privacy Policy. TuringSense reserves the right to modify the Privacy Policy in its discretion from time to time. Continued use of the Service after any such changes shall constitute your consent to such changes.

9. Term & Termination

This Agreement is effective from the date on which you first access the Service or submit any User Content to TuringSense, whichever is earlier, and shall remain effective until terminated in accordance with its terms. TuringSense may immediately terminate this Agreement, and/or your access to and use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. TuringSense may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Service shall immediately cease, and you shall cease all use of the Service. Upon termination or expiration of this Agreement for any reason, Sections 1, 2, 3, 4(B), 4(C), 4(D), 4(E), and 5–20 shall survive.

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, or any part or portion thereof. Nothing in this Agreement shall be construed to obligate TuringSense to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.

10. Disclaimers

THE SERVICE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE, AND YOUR RELIANCE THEREON.

11. Limitation of Liability

NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER THE COMPANY NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). NEITHER THE COMPANY NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS PROVIDED OR POSTED ON THE SERVICE BY THIRD PARTIES.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

12. Indemnification

You (and also any third party for whom you operate an Account on the Service) agree to fully indemnify, defend (at TuringSense’s request), and hold TuringSense, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants and other representatives (collectively, the “TuringSense Parties”) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement; (b) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other rights of any third party; (c) your activities in connection with the Service or other websites to which the Service is linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Service; (f) any service or product offered by you in connection with or related to your use of the Service; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.

13. Jurisdictional Issues

TuringSense makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.

14. Notice for California Users

Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

15. Dispute Resolution

A. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to TuringSense’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with its rules and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, TuringSense will pay the additional cost. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if TuringSense is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.

The parties understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.

B. Class-Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

C. Exception—Litigation of Small-Claims-Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

D. Thirty-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: 4675 Stevens Creek Blvd #101, Santa Clara, CA 95051. The notice must be sent within 30 days of registering to use the Service; otherwise, you shall be bound to arbitrate disputes in accordance with this Agreement. If you opt out of these arbitration provisions, TuringSense also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, TuringSense may terminate your use of the Service.

E. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with TuringSense and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

16. Choice of Law and Forum

This Agreement and your relationship with TuringSense Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 15, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Santa Clara County, California and you consent to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California.

17. U.S. Government Restricted Rights

The Service shall be deemed “commercial computer software” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Service by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

18. Apple

The provisions in this Section 18 will apply if you access or download the Services using the Apple App Store.

This Agreement is between you and TuringSense only, and not with Apple, Inc. (“Apple”). Apple is not responsible for the Service nor your use or possession thereof. The license grant in Section 4 is conditioned on you accessing and using the service solely on an Apple device that was sold to you or that you control and in accordance with the terms and conditions of the App Store Terms of Service as of the last updated date found here: http://www.apple.com/legal/internet-services/itunes/us/terms.html (“App Store Terms of Service”). In case of a conflict between this Agreement and the App Store Terms of Service, the terms of the App Store Terms of Service shall prevail.

You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.

Without limiting any of TuringSense’s rights herein, Apple is not responsible for addressing any claims of you or a third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) any third party claim that the Service or your possession and use of the Service infringes a third party’s intellectual property rights. Apple will not be responsible for either the investigation, defense, settlement or discharge of any such claims.

Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right to enforce this Agreement against you as a third party beneficiary thereof.

19. Miscellaneous

If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by a written instrument signed by TuringSense. If any employee of TuringSense offers to modify this Agreement, he or she is not acting as an agent for TuringSense or speaking on TuringSense’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of TuringSense or anyone else purporting to act on TuringSense’s behalf. Subject to Section 18, this Agreement is between you and TuringSense; there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with TuringSense’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. TuringSense may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on TuringSense at info@turingsense.com (in the case of TuringSense) or to the e-mail address you have designated on your Account (in your case). Notice to you shall be deemed given 24 hours after the e‑mail is sent. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.

The Service is Operated By

TuringSense, Inc.

Effective March 28, 2017

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