Effective date: October 14, 2014
These Terms of Use (the “Terms”) are a binding contract between you and Smart Sense (together with its affiliates, “Smart Sense,” “we,” “us,” or “our”). You must agree to and accept all of the Terms in order to use our Apps (defined below), website(s), products and/or services (collectively, the “Services”). If you do not agree to these Terms, please do not install, access or use the Services in any manner or in any form.
You affirm that you are at least 13 years old. If you are under 13 years of age, you may not use the Services.
Smart Sense’s mobile applications (“Apps”) allow you to analyze, modify and/or optimize certain device characteristics, such as battery consumption and network traffic. Downloading, installing and using the Apps means that information about your device and your on-device usage behavior (including, but not limited to, the websites you visit, the content of your online activities, and other mobile data transactions) will be received and analyzed by our servers, as described in our Privacy Policy.
Smart Sense grants you a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Services for your own internal, personal, non-commercial use (subject to these Terms). All rights not expressly granted remain reserved by Smart Sense.
The materials displayed, performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images and illustrations (collectively, the “Content”) may be protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions related to any Content you access through the Services, and agree that you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you: (i) without the prior consent of the owner of that Content or (ii) in a way that violates a third-party’s rights.
You understand that Smart Sense owns the Services and has no obligation to compensate you for any suggestions, ideas, enhancement requests, feedback or information provided by you or any other party relating to the Services. You agree not to modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services.
Smart Sense does not claim ownership in any Content that you may upload through the Services. However, when you do so, you represent and warrant that you have the right to upload such content.
You further represent and warrant that: (i) you acknowledge and understand that the Services collect information that may be regarded as proprietary, such as your device model, mobile carrier, the applications you use, the websites you visit, and other interactions with and/or through the Services; and (ii) that you are the rightful owner of all such information and/or that you have obtained all rights necessary to provide us such information; and (iii) you understand that use of the Services may result in additional network traffic and/or affect certain on-device resources, such as battery. By using the Services, you agree to such practices, some of which are described in more detail in our Privacy Policy.
You are responsible for all actions you take using or related to the Services, and you represent and warrant you have all rights necessary to take such actions.
Any Content publicly posted or privately transmitted through the Services (including by you) is the sole responsibility of the person from whom such Content originated, and you access all such Content at your own risk. You agree that we are not liable for any errors or omissions in that Content or for any damages or loss you incur in connection with such Content. We cannot control, and have no duty to take any action regarding, how you may interpret and use such Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability related to such Content. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Smart Sense is not responsible for such risks. Smart Sense has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, practices or opinions of any third-party websites or services or any third party that you interact with through the Services. You understand that Smart Sense does not endorse or sponsor any such third-party websites or services and that Smart Sense will not and cannot monitor, verify, censor or edit the content of any third-party website or service. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any such third parties. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party websites or services (as well as your interactions with any organizations or individuals related to such third-party websites or services).
If you register with the Services, we may ask you to provide certain information, such as your name and contact details, which we will use in accordance with our Privacy Policy. You agree to keep all such registration information accurate and current. If we provide the ability to create an account, you agree to keep any account credentials (such as login and password) confidential. You are solely responsible for the action and activities that occur in connection with your account.
If there is a dispute between users of our Service, or between users and any third party, you agree that Smart Sense is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Smart Sense, its affiliated companies, and the officers, employees, agents, and successors of Smart Sense and its affiliated companies from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
You understand that the Services may modify network traffic and/or device characteristics for your benefit (e.g., data compression) and hereby agree to such any such modifications.
You represent, warrant, and agree that you will not (directly or through a third-party) use or interact with the Services in a manner that:
Violation of any of the foregoing is grounds for termination of your right to use or access the Services.
We may, at any time, suspend or discontinue any part of the Services, introduce new features, impose limits on certain features or restrict access to part or all of the Services. Similarly, we reserve the right to remove and/or block any Content from the Services at any time for any reason (including, but not limited to, if someone alleges you contributed such Content in violation of these Terms).
You can stop using the Services at any time as described in our Privacy Policy. If you encounter issues deleting or uninstalling the Apps, please contact us at contact@smart-sense.org.
Smart Sense may terminate (or suspend) your access to the Services at any time for any reason. Smart Sense has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
Use of the services is subject to the Smart Sense Privacy Policy.
We reserve the right to charge for part or all of Services at any time. We will notify you before any such fees become applicable.
If you access the Services via a mobile device provided by Apple, Inc. (“Apple”), the following additional terms apply:
THE SERVICES AND CONTENT ARE PROVIDED STRICTLY ON AN “AS-IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SMART SENSE (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS AND ASSIGNS) AND ITS LICENSORS. WITHOUT DEROGATING THE FOREGOING, SMART SENSE MAKES NO REPRESENTATION, WARRANTY OR GUARANTY THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, BE ERROR-FREE, OPERATE WITHOUT DISRUPTION, DELAYS, OR LIMITATIONS OR BE IMMUNE FROM UNAUTHORIZED ACCESS.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL SMART SENSE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF $100, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS AND/OR EXCLUSIONS. IN SUCH CASES, SMART SENSE’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree to indemnify and hold Smart Sense, its affiliates, officers, agents, employees, and partners harmless from and against any and all complaints, claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to third-party claims involving: (a) your use of the Services (including any actions taken by a third party using your account) and (b) your violation of these Terms.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without Smart Sense’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND SMART SENSE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Smart Sense agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Smart Sense and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. All modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Smart Sense, and do not have any authority to bind Smart Sense in any respect whatsoever. These Terms were written in English (US). To the extent any translated version conflicts with the English version, the English version controls.
We reserve the right to update these Terms at any time and encourage you to review them periodically. You agree that continued use of the Services after changes to the Terms have been posted signifies your acknowledgement and consent to such updated Terms. If you do not agree to the updated Terms, you must terminate your use of the Services (see “Termination,” above).