GATE LABS TERMS OF SERVICEEFFECTIVE DATE: March 15, 2016
These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES.
AS DESCRIBED BELOW, SECTIONS 4, 9, AND 18 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM,
AGE POLICY; PERMITTED USERS
You may use the Services only if you can form a binding contract with Gate Labs, and only in compliance with these Terms and all applicable laws. Any use or access by anyone under the age of 13 is prohibited. If we learn or have reason to suspect that a user is under 13 years of age, we will promptly delete any personal information in that user’s account. The Services are not available to any users previously prohibited from using the Services by Gate Labs. Finally, by using the Services you represent and warrant to Gate Labs that you own the building where the hardware associated with the Services will be used, or that you have authority from the owner of the building to use the Services.
PERMITTED USE OF THE SERVICES
You may only use the Services for their intended purpose. You may not use the Services for any other purpose. Any non-permitted use of the Services, as determined in our sole discretion, shall be grounds for immediate termination of these Terms and immediate termination of your use of, and access to, the Services.
NATURE OF THE SERVICES
The Services are intended to be accessed and used for non-time-critical information and control of the Services, and they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond our control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that we are not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.
You acknowledge and agree that the Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. YOU UNDERSTAND THAT THE SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM – GATE LABS WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY.
LIMITATIONS ON USE OF THE SERVICES
You are prohibited from violating or attempting to violate any security features of the Services, including, without limitation, accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; attempting to probe, scan, or test the vulnerability of the Services, or any associated system or network, or to breach security or authentication measures without proper authorization; interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,” or undertaking similar activities; and forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Services. Further, you may not copy, sell, distribute, publish, download, or reproduce any aspect of the Services. You also may not modify, make derivative works of, decompile, reverse-engineer, disassemble, or otherwise convert any aspect of the Services. You also may not use the video and audio features of the Services for any purpose that is contrary to applicable law. Further, you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; you agree not to access the Services in order to build a similar or competitive service; you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Gate Labs; and you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
The Services depend on: (i) a working Wi-Fi network that is positioned to communicate reliably with the hardware associated with the Services; (ii) an account; (iii) mobile phone number; (iv) always-on broadband internet access in the building where the hardware is installed; (v) periodic charging of the battery for the hardware; and (v) other system elements that may be specified by Gate Labs. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. You acknowledge and agree that you are responsible for all costs associated with meeting the system requirements described above.
OWNERSHIP OF THE SERVICES
The Services contain important and proprietary property owned by us, including software and hardware that constitute our intellectual property and trade secrets. Except in the limited circumstances described in Section 8 specific to ownership of individual unit or units of hardware (but not the underlying technology therein), nothing in these Terms shall be construed as a conveyance of any ownership right or title in or to our property. We only grant you a nonexclusive, nontransferable, non-sublicensable, and revocable license to use the Services for the purposes permitted by these Terms, and only for as long as you are permitted to access the Services.
Further, you may choose to, or we may invite you to submit comments, suggestions, or ideas about the Services, including how to improve the Services (“Feedback”). By submitting any Feedback, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place us under any fiduciary or other obligation. We may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that we do not waive any rights to use similar or related ideas previously known to us, developed by its employees, or obtained from other sources.
The hardware provided as part of the Services shall remain our property, unless we specifically provide you with the opportunity to purchase, or otherwise obtain, an ownership right in the individual unit or units of hardware. The hardware may not be uninstalled or sold, or otherwise transferred by any means, to a third party without our prior approval in writing. Unless we provide you with an ownership right in the individual unit or units of hardware, Gate Labs may retrieve the hardware at any time. In the event that we provide you with the ability to own an individual unit or units of hardware, we do not convey any ownership rights or transfer any intellectual property rights therein, and your continuing use of the hardware shall still be subject to the terms and conditions contained in these Terms, including but not limited to the permitted uses described in these Terms and the ability of Gate Labs to terminate your access to other aspects of the Services as described in these Terms.
INHERENT RISKS ASSOCIATED WITH THE SERVICES
Due to the nature of the Services, which provide the ability for you to allow third parties to remotely access your home and other buildings where the Services are used, there are inherent risks associated with your use of the Services. You agree that you understand these risks, which may include the possibility of theft, property damage, and others by the third parties to whom you provide access through the Services. Further, you agree that to the fullest extent permitted by law, we shall not be responsible for any damage or losses caused by third parties that result from your use of the Services.
VIDEO AND AUDIO RECORDING
Video and audio may be recorded, shared, and transmitted through the Services. You acknowledge that data protection and privacy laws where you use the Services may impose certain responsibilities on you and your use of the Services. You agree that you (and not Gate Labs) are responsible for ensuring that you comply with any applicable laws when you use the Services, including but not limited to (i) any laws relating to the recording or sharing of video or audio content that includes third parties, or (ii) any laws requiring notice to, or consent of, third parties with respect to your use of the Services.
Gate Labs does not claim ownership of the video or audio recordings. You own these recordings. However, by using the Services, you give Gate Labs the right, without any compensation or obligation to you, to access and use the recordings for the limited purposes of providing the Services to you, improving the Services, and developing new products and services.
You also acknowledge and agree that Gate Labs may access, use, preserve and/or disclose the video and audio recordings to law enforcement authorities, government officials, and/or third parties, if legally required to do so or if we have a good faith belief that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with legal process or request; (b) enforce these Terms, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of users of the Service, a third party, or the public as required or permitted by law.
THIRD PARTY SITES AND SERVICES
UPDATES TO THE SERVICES
Gate Labs may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your account and stop using the Services. If you do not terminate a previously created account, you may receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any Updates Gate Labs provides. Your continued use of the Services is your agreement to these Terms with respect to the Services.
INFORMATION YOU PROVIDE TO GATE LABS
INTELLECTUAL PROPERTY RIGHTS OF OTHERS
You may not upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of intellectual property or proprietary rights of any third parties. If you do not respect a third party’s intellectual property or proprietary rights, you are solely responsible for any violations of law. In addition, you are solely responsible for infringement of third party rights caused by any information that is generated from your account.
USERNAMES AND PASSWORDS; ACTIONS FROM YOUR ACCOUNT
As part of our Services, you will be required to create an account with a username and password that will provide you access to your account. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any U.S. or other applicable law or regulation. You are solely responsible for keeping your password safe from disclosure to third parties. You may not use anyone else’s account, including their username or password. If you become aware of any unauthorized use of your account, username, or password, you must promptly notify us of such use. You agree that we will not be liable for any loss that you incur if someone else uses your account, username, or password, either with or without your knowledge. Further, you agree that because you are responsible for maintaining access to your account, that you are solely responsible for any harm caused by use or misuse of the Services originating from your account, whether or not you were actually the person who used or misused the Services.
You shall not make inappropriate content available on, or through, the Services, including, but not limited to: libelous, defamatory, obscene, pornographic, abusive, or threatening content; content that advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; or advertise or otherwise solicits funds for goods or services. If you post this type of inappropriate content, or use the Services to transmit such content, we may remove such content from our servers and terminate your account.
DISCLAIMER OF WARRANTIES
(a) THE SERVICES (INCLUDING ALL SOFTWARE AND HARDWARE THEREIN) ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND GATE LABS AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
(b) GATE LABS AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GATE LABS OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
(c) GATE LABS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES THAT UTILIZE THE SERVICES FOR ACCESS TO THE BUILDING WHERE THE HARDWARE ASSOCIATED WITH THE SERVICES ARE USED) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND GATE LABS WILL NOT BE A PARTY TO ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
(d) WHEN YOU INSTALL, SETUP OR USE THE SERVICES YOU MAY BE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH OPERATION WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
(e) GATE LABS MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND GATE LABS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. GATE LABS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH, OR IN ASSOCIATED WITH, THE SERVICES.
LIMITATION OF LIABILITY
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) GATE LABS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES, EVEN IF GATE LABS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) GATE LABS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED $100. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. GATE LABS DISCLAIMS ALL LIABILITY OF ANY KIND OF GATE LABS’ LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL GATE LABS BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. FURTHER, UNDER NO CIRCUMSTANCES WILL GATE LABS BE LIABLE IN ANY WAY FOR ANY HARM CAUSED TO YOU BY THIRD PARTIES WHO YOU ALLOW TO ACCESS THE BUILDING WHERE THE GATE LABS HARDWARE IS INSTALLED.
INDEMNIFICATIONYou agree to defend, indemnify and hold harmless Gate Labs, its directors, officers, and agents, as well as its licensors and suppliers from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use of the Services, (ii) your violation of these Terms, or (iii) your violation of any law or the rights of any third party. Gate Labs reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Gate Labs and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Gate Labs’ prior written consent. Gate Labs will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
GOVERNING LAWThese Terms shall be governed by the laws of the State of California, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the state and federal courts in or for San Francisco County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in these Terms.
(a) Contact Gate Labs First. If a dispute arises between you and Gate Labs, we hope to be able to resolve the issue directly. You agree that you will notify Gate Labs about any dispute you have with Gate Labs regarding these Terms or the Services by contacting Gate Labs.
(b) Binding Arbitration. You and Gate Labs agree, subject to Section 23(g) (Limited Injunctive Relief), to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Service. Subject to Section 23(g) (Limited Injunctive Relief), any dispute or claim made by you against us or us against you arising out of or relating to these Terms or your use of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration.
(c) Arbitration Procedures. You must first present any claim or dispute to us by contacting Gate Labs to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Gate Labs. Gate Labs may request arbitration against you at any time after it has notified you of a claim or dispute. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by these Terms. The place of any arbitration will be San Francisco, California, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Gate Labs nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
(d) No Class Actions. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
(e) Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Gate Labs. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(f) YOU MUST CONTACT GATE LABS WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
(g) Limited Injunctive Relief. Notwithstanding the foregoing, Gate Labs may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
TERM AND TERMINATION
These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. If you transfer any aspect of the Services to a new owner, your right to use the Services with respect to the Services automatically terminates, and the new owner will have no right to use the Services under your account and will need to register for a separate account.
Upon termination of these Terms, your Account and your right to use the Services will automatically terminate. However, the provisions of these Terms that by their sense and context are intended to survive the termination of these Terms shall survive the termination. Such provisions shall include: Sections 7, 8, 9, 10, 11, 13, 14, 16, 18, 19, 20, 21, 22, 23, 24, and 25.
SEVERABILITY AND WAIVER
If, for whatever reason, any term or condition in these Terms is deemed unenforceable, all other terms and conditions will remain unaffected and in full force and effect. The failure to enforce any provision of these Terms is not a waiver of our right to do so later, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
These Terms shall be binding on the parties and their respective successors and assigns. These Terms may be assigned by Gate Labs without restriction. These Terms may not be assigned or otherwise transferred by you without our prior written consent.
MODIFICATIONS TO THESE TERMS
As we improve or change our Services, we may add to, change, update, or modify these Terms with or without notice to you. If you continue to use the Services, you consent to the new Terms. We will always have the latest version of these Terms available through the Services. Further, we reserve the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
HEADINGS USED IN THESE TERMS
The section headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.