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Last updated: August 15, 2023
Welcome to this Smart TV (referred to in this policy as the “Device”).
This End User License Agreement (“EULA”) governs and regulates the use of the Device and the use of Smart Services (defined in Section 1 below) available through it, and is a legal agreement between the end user (referred to as “you” or “your”) and VIDAA USA Inc. and our affiliates and subsidiaries (referred to as “we” or “us” or “our”). If you are in Russia, your agreement is with Qingdao VIDAA Software Technology Co., Ltd. (“VIDAA China”), a VIDAA affiliate.
IMPORTANT NOTICE REGARDING ARBITRATION: THIS EULA CONTAINS A BINDING ARBITRATION AGREEMENT THAT LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU. PLEASE REVIEW SECTION 13 BELOW FOR DETAILS ABOUT ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
USE OF THE DEVICE’S SMART SERVICES
Please read this EULA carefully. By using the Device and installing and/or accessing or using the Smart Services through this Device, or any other Internet-connected features or functionality made available on your Device, you agree to be legally bound and abide by this EULA. Your use of the Device and/or the Smart Services indicates that you have read and accepted this EULA and any other applicable terms. If you do not wish to agree to this EULA, you will not be able to access or use the Smart Services in connection with the Device.
By using the Device and/or the Smart Services, you also acknowledge our Privacy Policy (available at https://www.vidaa.com/privacy, or within the “Settings” menu of your Device), which governs the collection and use of your Personal Data.
Please note that we will only collect Personal Data in relation to a specific Smart Service if you choose to interact with that Smart Service. For example, as set out below, your Personal Data will not be collected via the Amazon Alexa Service unless you choose to enable that service.
Please note as well that, as part of your use of the Device and/or Smart Services, you may access Applications, Materials or services offered and controlled by unaffiliated third parties, whose practices may be governed by a separate privacy policy and/or terms of use (for example, a channel or Application whose operator is unaffiliated with us). You should review the applicable privacy policy and/or terms of use of any third-party service providers or Applications whose Smart Services you access via the Device or Services.
Table of Contents
VIDAA END USER LICENSE AGREEMENT
1. IMPORTANT DEFINITIONS
2. USE OF DEVICES AND SMART SERVICES
3. SPECIFIC USE OF SMART SERVICES THROUGH OUR APPLICATIONS
4. GRANT OF LICENSE
5. USE RESTRICTIONS AND PROHIBITIONS
6. CONTENT PROVIDED BY YOU OR OTHER USERS
7. CUSTOMER SERVICE COMMUNICATIONS
8. THIRD PARTY SERVICES
9. PRIVACY AND PROTECTION OF PERSONAL DATA
10. ENHANCED VIEWING SERVICE AND AUTOMATED CONTENT RECOGNITION
11. WARRANTIES AND LIABILITIES
12. WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
13. INDEMNIFICATION
14. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
15. GOVERNING LAW AND JURISDICTION
16. ACTIONS REQUIRED BY LAW
17. ASSIGNMENT OR TRANSFER
18. WAIVER AND SEVERABILITY
19. ENTIRE AGREEMENT
20. CHANGES TO EULA
21. CONTACTING YOU
22. CONTACTING US
“Application(s)” means an embeddable, downloadable and/or executable software application owned by us or a third party and made available on the Device.
“Content” means all audio and visual elements and ideas offered by us or third parties, including, but not limited to, data, movies, videos, photographs, software, games, designs, likenesses, artwork, images, music, sound, information and other materials, tangible and intangible, including derivative works, on all media and formats, existing or in the future.
“Device” means a Smart TV running the VIDAA Smart TV operating system (“OS”) and through which this End User License Agreement is made available.
“Intellectual Property Rights” means all legal and beneficial title and/or interest in all patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks, trade names, rights to domain names, rights in get-up and trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications, rights to apply for and obtain, and renewals or extensions of, rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Materials” collectively means any Content, Submitted Content (where applicable and as further defined herein), messaging, blogging, chatting, social networking, information, advertising and/or internet links, etc., accessible or delivered through the Device.
“Personal Data” refers to any information that identifies or makes an individual identifiable. The definition of Personal Data (used interchangeably in this EULA with the term “Personal Information”) depends on the applicable law based on your physical location. Only the definition that applies to your physical location will apply to you under this EULA or our Privacy Policy, which is available at https://www.vidaa.com/privacy.
“Smart Service(s)” means the access, procurement, disposal, sale, purchase, subscription, lease, rental or consultation or other use of Materials, and all other types of services or functions typically available from the Internet, offered by us or by third parties through Applications. Note that Applications offered by unaffiliated third parties may be subject to terms and conditions or privacy policies offered by the developers or operators of such third-party Applications and services, which you should review prior to your use of them.
From time to time, we may directly offer and make available to you certain Smart Services. Your use of such Smart Services shall be subject to this EULA. Smart Services may be provided locally subject to local laws and regulations and, depending on your residence, location and network availability, the types and levels of the Smart Services available may be limited. The EULA for the use of such Smart Services may differ for each different country, region or market, and are subject to relevant local, country and regional laws and regulations. All Smart Services are provided solely for your personal use in connection with your use of the Device. You may not use any Smart Services in a manner that has not been expressly authorized in this EULA. Without limiting the foregoing, except as expressly permitted by this EULA and/or applicable laws and regulations, you may not modify, copy, re-publish, upload, post, transmit, translate, sell, create derivative works of, exploit, or distribute in any manner or medium any of the Smart Services accessed through this Device.
Smart Services are intended for use by persons eighteen (18) years of age or older. If you are not at least eighteen (18) years of age or older or are legally, or otherwise, restricted from using the Smart Services, please discontinue using the Smart Services immediately. By using any portion of the Smart Services, you accept this EULA and are certifying that you are at least eighteen (18) years of age. Any use of any Smart Services by any individuals not of such age shall be considered a violation of this EULA. The use of any portion of the Smart Services is restricted solely to personal use and no other uses are permitted.
WE RESERVE THE RIGHT TO BLOCK OR TERMINATE ANY USER ACCOUNT IN THE EVENT WE REASONABLY DETERMINE THAT ANY USE OF ANY SMART SERVICES IS IN VIOLATION OF THIS EULA, INCLUDING CREATING ACCOUNTS WITH FALSE INFORMATION.
Smart Services offered through the Device that require a fee may not be accessed by persons who have not paid the appropriate fee. In the event that registration, creation of a user account, and/or a fee is required for the Smart Services offered or provided by the provider or licensor of such Smart Services, such registration, creation of a user account, and/or a fee shall be subject to privacy policies, terms and conditions of such Smart Services provider or licensor.
All Smart Services accessible through this Device may be changed, suspended, removed, terminated or interrupted, or access may be denied, blocked or disabled at any time, without notice, and we make no representations or warranties that any Smart Services will remain available for any period of time. All Materials are transmitted by means of networks and transmission facilities over which we have no control. We may impose limits on the use, disabling, removal or suspension of any Smart Services made available through this Device at any time, without notice or liability. We may impose limits on the use of, or access to, certain Smart Services in any case and without notice or liability. You must accept this EULA and acknowledge the Privacy Policy if you wish to use the Smart Services accessible through your Device.
All third-party Smart Services provided via the Device are managed and controlled by their respective owners. We are not responsible for the included third-party pre-loaded, user downloaded or other third-party Smart Services, which may be modified, removed, deleted or changed, with or without notice by their respective owners. Any questions or requests for service relating to such Smart Services should be made directly to the respective third-party Smart Services providers, and not to us.
Access to certain portions of the Smart Services through our Applications may require registration and creation of a user account and/or a fee. Such registration and creation of a user account, or payment of a fee may need to be completed on a webpage run by us (or an affiliate of ours) or by a third party (including a payment gateway provider). Such registration may require providing Personal Data to us or third parties (e.g., choosing a unique, secret password that may not be shared with others). Any Personal Data provided by you to us will be Processed in accordance with our Privacy Policy (available at https://www.vidaa.com/privacy, or during your Device’s first setup process or by visiting your Device’s “Settings” menu). The Personal Data you provide for registration must be complete and accurate. You shall not use any third-party Personal Data to create an account in connection with the use of the Smart Services, and you are not allowed to access others’ accounts. We are not responsible for use or misappropriation of any other’s Personal Data to access the Smart Services.
As between you and us, we own all right, title, and interest in and to our owned Applications, and each respective third-party Application owner owns all right, title and interest in and to their respective third-party Application, including, without limitation, all applicable Intellectual Property Rights or other proprietary rights in the Application throughout the world, regardless of whether registered or legally secured. Subject to the respective license agreements between us and the respective third-party Application owner, and your full compliance with this EULA, we grant to you a non-exclusive, limited, non-transferable and personal license (without the ability to sublicense) to download and/or use the Applications (other than any third-party Application which is governed by its own and separate license terms and conditions) to display, receive or otherwise use (only to the extent permitted in each case) the Smart Services through the Application from your Device only. No other rights to the Application are granted. The scope of rights for Smart Services shall be subject to the terms and conditions of the respective Smart Services and other licensing requirements and restrictions otherwise imposed or required by the relevant Smart Services providers. All rights including all Intellectual Property Rights in the Applications and the Smart Services remain our property or that of the relevant licensors or owners of the Application or the Smart Services. Any breach of this EULA will result in the revocation of the rights granted herein in whole or in part, and we or the respective owners of the Application and the Smart Services may take further legal action if necessary.
Your continued use of our Smart Services, including your continued use after any changes to the EULA as noted below, will constitute your acceptance of the new EULA and your agreement to abide and be bound by any modifications to them. You or any third party (directed by you) may not display, copy, store, modify, sell, trade, resell, reproduce, publish, broadcast, redistribute, or make derivative works of any Materials, whether a portion of or in their entirety, and such displaying, copying, storing, modification, sale, publishing, broadcasting or redistribution shall be prohibited unless you have obtained all necessary rights and permissions from us or each of the respective relevant owners or right holders of such Materials or as permitted by applicable law. Unauthorized use of the Materials is prohibited and may result in criminal prosecution and/or civil liability, for which you shall be solely responsible. Likewise, if we suspect or become aware that you have obtained your Device through illicit means, including but not limited to via theft or through purchasing known stolen goods, we reserve the right to deactivate your television remotely at any time.
You may not use any portion of the Device for any other purposes other than as permitted herein, including but not limited to illegal activity, to make solicited and/or unsolicited offers or advertisements, to impersonate or falsely claim affiliation with any person or entity, to misrepresent, harass, defraud or defame others, to post, upload, transmit or disseminate any obscene, unreasonably offensive or any other unlawful material, or any information that may negatively impact our reputation, goodwill and/or the Smart Services, nor for any commercial purposes. Except as expressly permitted by this EULA, and except to the extent provided for by applicable laws, you may not disassemble, reverse engineer and/or tamper with the Application(s), or transmit hidden or malicious code or to collect information of other users through the Application(s). You are not permitted to copy, edit, modify, alter or create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of any Application, unless expressly permitted by us in writing, or to the extent permitted under the laws applicable to you, and you will not permit or grant a license to any third party to do so. You may not take any action to interrupt the functionality of or tamper with the Materials contained in or provided through the Smart Services or its servers or to unreasonably affect others’ enjoyment of the Smart Services in any way. You may not in any manner attempt to gain unauthorized access to 1) any portion or feature of the Device; 2) the Smart Services, or any other systems or networks connected to the Device; 3) the Smart Services or to any our controlled server; or 4) to any of the Applications, Materials, or other services offered on or through the Smart Services.
WE RESERVE THE RIGHT TO BLOCK, DENY OR TERMINATE YOUR ACCESS TO THE SMART SERVICES IN OUR SOLE DISCRETION FOR ANY REASON AND AT ANY TIME AND WITHOUT NOTICE OR LIABILITY.
Any Content submitted, uploaded or posted by you, on behalf of you, or by other users, on or through your Device or the Smart Services (herein “Submitted Content”) will be considered non-confidential and non-proprietary, subject to local laws and regulations. We also reserve the right to disclose your Personal Data as necessary to any third party who claims that any Submitted Content constitutes an infringement of third party Intellectual Property Rights, or of their right to privacy. By posting, submitting, uploading or otherwise transmitting Submitted Content in any way, you grant us a perpetual, irrevocable, unrestricted, non-exclusive, worldwide, fully paid-up, royalty free, sub-licensable license to use, modify, change, copy, disclose, license, perform, display, post, publish, distribute, transmit or otherwise use such Submitted Content in any manner, create derivative works thereof or incorporate the Submitted Consent into other work anywhere in the world. We have the right to remove any Submitted Content from the smart systems, and any other our systems, for any reason including if, in our sole opinion, such Submitted Content is unnecessary, offensive, indecent or objectionable.
We do not control the Submitted Content and do not warrant the nature, accuracy, integrity, appropriateness or quality of the Submitted Content. You warrant that any of your Submitted Content does not and will not infringe any third party Intellectual Property Rights. You are solely responsible for all Submitted Content that you upload, post, email, transmit, or otherwise make available in any portion of the Smart Services. We assume no liability for such Submitted Content and you are solely responsible for any liability arising from or related to any Submitted Content posted, uploaded or transmitted by you or on behalf of you on or through your Device or the Smart Services. We reserve the right to remove Submitted Content that may be infringing on another person’s Intellectual Property Rights with or without notice to the infringer and in accordance with applicable laws.
You understand and agree that the Smart Services may include certain communications from us or third parties such as update announcements, administrative messages and other materials (“Communications”). As those Communications are part of the Smart Services, you may not opt out of receiving them. Certain Materials may not be suitable for minors or other users. Such Materials may not be rated or identified as being unsuitable. Therefore, you understand and agree that you are using the Materials at your own risk and we shall have no liability to you for any unsuitable Materials.
The Device may enable you to interact with, link to or associate third parties providing Smart Services that are not owned, controlled or operated by us. This access or interaction with third party Smart Services may be facilitated by, for example, the country location you identified during the setup process. We are not responsible for the functionality, quality or content of third-party Smart Services, and do not assume any obligation to review any third party Smart Services. You expressly acknowledge and agree that the identification of your country location and your use of, linking to or accessing any third party Smart Services is entirely at your own risk, and it is your responsibility to view and abide by the terms of use, privacy policies, and any other policies applicable to such third-party Smart Services. We make no representations or warranties with respect to any third-party Smart Services, and you understand and agree that, to the maximum extent permitted by law, that we shall in no event be liable for any direct, indirect, incidental or special or consequential loss or other damage, attorney’s fees and expenses arising out of, or in connection with, your use or access to third-party Smart Services. Any activities you engage in connection with third party Smart Services are subject to the privacy policies, terms and conditions and other rules of the third parties.
VIDAA is committed to respecting your privacy and the confidentiality of your Personal Data. We employ reasonable administrative, technical and physical security measures to help protect your information. To learn about how we protect and handle your Personal Data and other information when you use our website and other services, please visit our Privacy Policy, available at https://www.vidaa.com/privacy.
Where available, VIDAA offers an Enhanced Viewing Service (“EV Service”) that, when operating, adjusts your sound and video quality based on what you are watching in real time and provides you with useful, interactive features, content recommendations, and personalized advertisements. This is an optional service which you must opt-in to via your Smart TV Device during the initial setup or any time after within the Device’s “Settings” menu. From the Settings menu, you may also choose to enable all, some or none of Enhanced Viewing Service’s features.
Please Note: EV Service is not available in all areas nor in all makes and models of Devices. It may not currently be available on your Device, even if you opt-in to the EV Service. If EV Service is not currently available in your location, the EV Service features noted immediately above will not be delivered to your Device. If you do opt-in, and your Device supports it, EV Service will be activated automatically once EV Service is available in your location. The EV Service uses Automated Content Recognition (“ACR”) technology, which works by analyzing and matching onscreen audio sounds that come from your Smart TV (such as a TV show’s dialogue or a movie streaming from an app or music playing during a commercial) against an extensive database of programming content. When the content is recognized, we can use this ACR data for content recommendations, advertising and, where available, to automatically optimize your picture quality based on the type of content you are watching (e.g., optimizing the picture mode to watch sports versus a movie).
Through the EV Service and ACR technology, we may collect and use data from your Smart TV, including: device and usage information; log data about your use of apps and services; user ID or other identifiers; your Smart TV’s IP address; product registration data; geolocation or information that can be used to derive geolocation; your Smart TV viewing history; behavioral and demographic information; and your general device location (together, “Viewing Data”). If you opt-in to the EV Service, we may collect and use your Viewing Data even if the EV Service is not currently available on your Device or at your location.
Viewing Data will be used to help our advertising partner Tremor Video and its partners select, deliver and measure personalized ads shown to you on your Smart TV or other linked devices sharing the same IP address, based on audience segmentation created from your viewing habits. By giving your consent to personalized ad targeting, you therefore also allow Tremor to use your household IP address to identify other devices linked to you or your household for such advertising purposes. If you do not consent to personalized ads, you will still see ads, but they may not be as interesting to you.
For more information, including regarding how Tremor may share your data with its partners for such purposes, please review Tremor’s privacy policy (available at: https://www.tremorinternational.com/privacy/). You can also see each partner and how they may use data about you and your household at https://www.tremorinternational.com/partners/.
We use and may share this information for the purpose of delivering you the EV Service (subject to availability on your Device and/or at your location), device-specific viewing recommendations, and serving relevant advertising. You may opt-in or opt-out of EV Service at any time through the Smart TV’s “Settings” menu.
For more information, including details on the technical aspects of the EV Service and ACR data, please see the VIDAA Enhanced Viewing Service Privacy Notice here: https://wwww.vidaa.com/privacy.
DEVICE
FOR THE DEVICE, WE GRANT TO YOU A SPECIAL WARRANTY TO THE EXTENT AS SPECIFIED AND UNDER THE PREREQUISITES SET IN THE DEVICE WARRANTY CARD. IN CASE OF A DEFECT OF THE DEVICE, YOU ARE NOT ENTITLED TO ANY FURTHER CLAIMS, IRRESPECTIVE OF THEIR LEGAL BASIS, AGAINST US. THE FOREGOING LIMITATIONS SHALL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR PERSONAL INJURY. FOR THE AVOIDANCE OF DOUBT, THE AFORESAID DOES NOT LIMIT OUR LIABILITY FOR DAMAGES ACCORDING TO MANDATORY STATUTORY PROVISIONS. FURTHERMORE, THE SPECIAL WARRANTY GRANTED BY US DOES NOT EXCLUDE OR LIMIT ANY CONTRACTUAL OR STATUTORY CLAIMS YOU MAY HAVE AGAINST THE SELLER OF THE DEVICE.
SMART SERVICES
TO THE EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS, TERMS, REPRESENTATIONS AND UNDERTAKINGS WITH RESPECT TO ANY THIRD PARTY SMART SERVICES, EITHER EXPRESS OR IMPLIED, AND ALL ASSOCIATED RISKS FROM THE USE OF THE DEVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THE FOREGOING LIMITATIONS SHALL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE, PERSONAL INJURY OR FRAUDULENT CONCEALMENT OF A LEGAL OR MATERIAL DEFECT OF THE RESPECTIVE SMART SERVICES BY US. WE DO NOT GUARANTEE THE ACCURACY, VALIDITY, TIMELINESS, LEGALITY, OR COMPLETENESS OF ANY THIRD PARTY SMART SERVICES MADE AVAILABLE THROUGH THE DEVICE AND DO NOT WARRANT THAT THE SMART SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE DEVICE IS OR WILL BE COMPATIBLE WITH ALL SMART SERVICES, OR THAT OPERATION OF THE DEVICE OR SMART SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
YOU AGREE TO ASSUME ALL RISKS OF USING THE SMART SERVICES, AND, TO THE EXTENT PERMITTED BY LAW, NOT TO HOLD US OR ANY OF OUR HOLDINGS, DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, CONTRACTORS, LICENSORS OR ADVERTISERS RESPONSIBLE FOR ANY DAMAGES, LOSSES, OR HARM, TANGIBLE OR INTANGIBLE, INCLUDING BUT NOT LIMITED TO COMPENSATORY, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, LOSS OF PROFIT, REVENUE, INTEREST OR BUSINESS, OR CORRUPTION OF DATA OR ATTORNEY’S FEES ARISING FROM THE USE OF THE SMART SERVICES AND/OR MATERIALS. DUE TO THE VARIOUS CAPABILITIES OF DEVICES FEATURING THE SMART SERVICES, AS WELL AS LIMITATIONS IN THE AVAILABLE SMART SERVICES OFFERED VIA THE DEVICE OR APPLICATION(S), CERTAIN FEATURES AND/OR SMART SERVICES MAY NOT BE AVAILABLE ON ALL DEVICES OR IN ALL TERRITORIES OR MAY CHANGE OVER TIME. SOME FEATURES ON THE SMART SERVICES MAY ALSO REQUIRE ADDITIONAL PERIPHERAL DEVICES THAT ARE SOLD SEPARATELY. WE DO NOT ENDORSE ANY OF THE IDEAS, PRODUCTS, PERSONS, OR OPINIONS EXPRESSED IN THE SMART SERVICES AND/OR MATERIALS.
WE SHALL NOT BE LIABLE TO YOU, WHETHER IN CONTRACT OR TORT OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, LOSS OF PROFIT, REVENUE, INTEREST, BUSINESS OR CORRUPTION OF DATA, ATTORNEY FEES, EXPENSES, OR ANY OTHER LOSS OR DAMAGES, INCLUDING PUNITIVE DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, ANY SMART SERVICES CONTAINED IN, OR AS A RESULT OF THE USE, OF THE DEVICE, OR ANY SMART SERVICES ACCESSED OR USED BY YOU, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
CERTAIN LEGISLATION MAY IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS UPON US WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED OR CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED EXTENT. THIS EULA MUST BE READ SUBJECT TO THESE STATUTORY PROVISIONS. IF THESE STATUTORY PROVISIONS APPLY, TO THE EXTENT TO WHICH WE ARE ABLE TO DO SO, OUR LIABILITY UNDER THOSE PROVISIONS WILL BE LIMITED, AT OUR OPTION, IN THE CASE OF SERVICES TO (A) THE SUPPLYING OF THE SERVICES AGAIN; OR (B) THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN AND, IN THE CASE OF GOODS, TO (A) THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; (B) THE REPAIR OF THE GOODS; (C) THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR (D) THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED. THE FOREGOING LIMITATIONS SHALL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE, PERSONAL INJURY OR FRAUDULENT CONCEALMENT OF A LEGAL OR MATERIAL DEFECT OF THE RESPECTIVE SMART SERVICES BY US.
YOU ASSUME FULL RESPONSIBILITY FOR ANY DAMAGES, LOSSES, COSTS, OR HARM ARISING FROM YOUR USE OF THE SMART SERVICES. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL LIABILITIES WITH RESPECT TO YOUR USE OF THE SMART SERVICES (REGARDLESS OF WHETHER OR NOT SUCH USE REQUIRES REGISTRATION, CREATION OF A USER ACCOUNT AND/OR PAYMENT OF A FEE) AND MATERIALS. THE FOREGOING LIMITATIONS SHALL NOT APPLY IN CASES OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE, PERSONAL INJURY OR FRAUDULENT CONCEALMENT OF A LEGAL OR MATERIAL DEFECT OF THE RESPECTIVE SMART SERVICES BY US. IF ANY PORTION OF THIS EULA ARE ILLEGAL OR UNENFORCEABLE OR THERE IS A CLAIM THAT WE HAVE BREACHED ANY OF THIS EULA, IT DOES NOT AFFECT OR INVALIDATE THE OTHER TERMS. THIS EULA MAY NOT BE WAIVED OR MODIFIED WITHOUT WRITTEN CONSENT FROM US.
FOR THIRD-PARTY SMART SERVICES, TO THE FULLEST EXTENT PERMITTED BY LAW, WE SHALL NOT BE HELD RESPONSIBLE FOR ANY THIRD-PARTY SMART SERVICES THAT MAY BE ACCESSED THROUGH THE DEVICE OR APPLICATION(S), NOR SHALL WE BE HELD RESPONSIBLE FOR HIDDEN OR MALICIOUS CODE CONTAINED ON OR DISTRIBUTED THROUGH THE APPLICATIONS OR OUR DEVICE BY THIRD PARTIES. WE DO NOT GUARANTEE THAT THERE WILL BE NO INTERRUPTIONS, DELAYS OR INACCURACIES IN THE SMART SERVICES AND DO NOT GUARANTEE THE AVAILABILITY OF SUCH SMART SERVICES.
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE DEVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY DEVICE, APPLICATION, CONTENT, SUBMITTED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY RIGHTS OWNED, LICENSED, USED OR CONTROLLED BY US (INCLUDING YOUR SUBMITTED CONTENT) OR OUR LICENSORS.
You agree to defend, indemnify and hold harmless us, our affiliates, licensors and service providers, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this EULA or your use of the Device and/or Smart Services, including, but not limited to, your Submitted Content, and any use of the Materials, services and products other than as expressly authorized in this EULA or your use of any information obtained through the Device.
Please Read This Provision Carefully. It Affects Your Legal Rights.
General Applicability
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at privacy@vidaa.com the following information: (1) Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, then You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, You or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing Us at privacy@vidaa.com the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
Arbitration Procedures
a. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
b. For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
c. Because this Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
d. Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
e. Location of Arbitration – You or We may initiate arbitration in either California or the federal judicial district that includes Your billing address.
f. Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon Your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
For Residents of the European Union. Exceptions to Liability Limitations: Nothing in this EULA excludes or limits our liability for personal injury arising from our negligence, or fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law. ARBITRATION MAY NOT APPLY TO YOU IF YOU ARE A RESIDENT OF THE EUROPEAN UNION AND SUBJECT TO THE ALTERNATIVE DISPUTE RESOLUTION DIRECTIVE (2013/11/EU) AND THE ONLINE DISPUTE RESOLUTION REGULATION (EU 524/2013) (AND ANY IMPLEMENTING REGULATIONS IN EACH MEMBER STATE OF THE EU), THE AGREEMENT TO ARBITRATE IN THE AGREEMENT WILL NOT APPLY TO IF NOT PERMITTED BY LAW.
For Residents of the United Kingdom. Exceptions to Liability Limitations: Nothing in this EULA excludes or limits our liability for personal injury arising from our negligence, or fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited by applicable law. ARBITRATION MAY NOT APPLY TO YOU IF YOU ARE A RESIDENT OF THE UNITED KINGDOM AND SUBJECT TO THE ALTERNATIVE DISPUTE RESOLUTION DIRECTIVE (2013/11/EU) AND THE ONLINE DISPUTE RESOLUTION REGULATION (EU 524/2013) (OR ANY SUCCESSOR TO THESE ENACTED BY THE UK POST BREXIT). THE AGREEMENT TO ARBITRATE IN THIS AGREEMENT WILL NOT APPLY TO IF NOT PERMITTED BY LAW.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both You and We specifically agree to do so in writing following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver
You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
Continuation
This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of this Website. Notwithstanding any provision in these Terms to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the present language in this Provision if a dispute between Us arises.
To the extent permitted by law, this EULA shall be governed by the laws of your residence country and by accepting this EULA, and by your use of the Smart Services, you are agreeing that such EULA and all other aspects of the Smart Services will be construed in all respects in accordance with the laws of your residence country.
We may need to comply with the lawful interception and/or data retention requirements of local law enforcement agencies from time to time. We may restrict access to any part of the Smart Services and the Device or terminate your access to the Smart Services, at any time in our sole discretion if required by law or by the relevant authorities or regulatory agencies to do so.
You are not permitted to transfer, assign or otherwise dispose of this EULA which is personal to you, or any of your rights or obligations arising under this EULA without our prior written consent.
No waiver of by us of any term or condition set forth in this EULA shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any our failure to assert a right or provision under this EULA shall not constitute a waiver of such right or provision.
If any provision of this EULA is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the EULA will continue in full force and effect.
This EULA constitutes the sole and entire agreement between you and us with respect to your use of the Device and/or the Smart Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to your use of the Device and/or the Smart Services.
We may revise and update this EULA from time to time in our sole discretion. All changes will be posted within your Device or through an update with a reasonable period of time before they become effective. They are deemed to be accepted by you unless you have notified us of your refusal within the above-mentioned period. In case of refusal you can terminate the EULA with immediate effect. In all other cases the updated EULA applies to all access to and use of the Device and the Smart Services thereafter. You acknowledge and agree that it is your responsibility to review our Smart Services and this EULA from time to time to familiarize yourself with any modifications.
Where permitted under applicable law, your continued use of our Smart Services, including your continued use after any changes to the EULA as noted above, will constitute acknowledgement of the new EULA and your agreement to abide and be bound by any modifications to them.
We may provide you with notices (including notices relating to changes to this EULA or termination of the Smart Services or parts thereof) by email, ordinary mail, or postings on or via the Device or Smart Services.
Please direct any additional questions you may have regarding this EULA to the local after-sales service center written in the warranty card inside the box of each Device or email to privacy@vidaa.com.
