TERMS OF SERVICE
Terms of Service
Last Updated – 7/31/17
PLEASE READ THIS TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. BY ACCESSING OR USING WWW.SCENERA.NET OR ANY OTHER WEBSITES OF SCENERA (COLLECTIVELY, THE “SITE”) IN ANY WAY, INCLUDING DOWNLOADING A SDK, API AND/OR BROWSING THE SITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SCENERA, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT VISITED THE SITE OR THAT DOWNLOADED THE SDK. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SITE OR PLACE A PRE-ORDER.
THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
- USE OF THE SITE.
You are solely responsible for the use of the Site. By using the Site, you acknowledge that your use of the Site is solely at your own risk. Your use of the Site is subject to these Terms of Service and any additional terms provided by SCENERA (“Additional Terms”) (collectively, the “Terms”).
- ADDITIONAL TERMS.
In addition to these Terms, the following Additional Terms apply to your use of the Site. By using the Site or downloading a SDK, API, you agree to be bound by these Additional Terms, as applicable, which are incorporated herein by reference:
- If you download a SDK, the SDK Agreement which governs your use of SDK you may obtain from SCENERA;
- If you download an API, the API Agreement which governs your use of API you may obtain from SCENERA;
- Any warranties or additional purchasing terms that SCENERA; and
- Any additional terms or conditions SCENERA may supply from time to time.
In the event of a conflict between the terms and conditions in this document and the terms in any of the above Additional Terms, these terms and conditions in this document will control.
- THIRD PARTY CONTENT.
- General. SCENERA may contain or display through the Site various materials and content from third parties (“Third Party Materials”). The display on or through the Site of such Third Party Materials does not in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by SCENERA of any third party or any affiliation between any such third party and SCENERA. Furthermore, in using and accessing the Site, you agree that SCENERA is in no way responsible for the accuracy, timeliness, or completeness of Third Party Materials. SCENERA’s display of specific Third Party Materials does not suggest a recommendation by SCENERA of the third party or any products, services, websites or plans offered. Your interaction with any third party (whether online or offline) is at your own risk, and SCENERA will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any such third party or for any personal injuries, death, property damage, or other damages or expenses resulting from your interactions with the third party.
- Third Party Links and References. The Site may contain references or links to third-party materials and websites not controlled by SCENERA. SCENERA provides such information and links as a convenience to you and such links and references should not be considered endorsements or recommendations of such sites or any content, products or information offered on such sites. You acknowledge and agree that SCENERA is not responsible for any aspect of the information or content contained in any third party materials or on any third party sites accessible or linked from the Site.
- USE RESTRICTIONS.
SCENERA does not allow use of the Site for any illegal, abusive purposes, or in any manner that interferes with or interrupts the proper functioning of the Site, including but not limited to, through the use of any bot, crawler, spider, or other automated process. If you violate any provision of these Terms, your permission to use the Site will terminate automatically. Additionally, SCENERA, in its sole discretion may suspend or terminate your access to the Site at any time, with or without notice. We also reserve the right to modify or discontinue the Site at any time (including, without limitation, by limiting or discontinuing certain features of the Site) without notice to you. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or use of the Site.
- SITE RESTRICTIONS.
You agree that you will not do, or attempt to do, any of the following:
Reproduce, duplicate, copy, sell, trade, resell, distribute or exploit any part of the Site, use the Site, access the Site, or use content obtained through the Site other than in accordance with all applicable Terms;
Access or use the Site for any comparative or competitive research purposes;
Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, or features that enforce limitations on the use of the Site, or any content therein;
Use any manual or automated means to extract and/or compile content from the Site for any commercial purpose or otherwise;
Interfere with or disrupt the Site, networks or servers connected to the Site, or violate the regulations, policies or procedures of such networks or servers;
Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of all or part of the Site or any other part thereof, except and solely to the extent permitted by law, or otherwise attempt to use or access the Site other than as intended; or
Use the Site in any manner whatsoever that could lead to a violation of any federal, state or local laws, rules or regulations.
- RESERVATION OF RIGHTS.
The Site is owned and operated by SCENERA. The software, content, visual interfaces, interactive features, information, trademarks, logos, graphics, design, compilation, computer code, products, software, services, content, and all other elements of the Site (“SCENERA Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All SCENERA Materials, including intellectual property rights therein and thereto, are the property of SCENERA or its subsidiaries or affiliated companies and/or third-party licensors. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the SCENERA Materials. SCENERA reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the SCENERA Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in these Terms.
- TERM AND TERMINATION.
These Terms will remain in effect until terminated. These Terms, and your rights and licenses hereunder, will terminate immediately upon your breach of the Terms. SCENERA may terminate these Terms, or limit or terminate your access to the Site at any time for any reason or no reason at all. Sections 2, 3 and 4-13 shall survive the termination of this Terms of Service for any reason, along with any provisions of the Additional Terms that expressly by their terms survive.
SCENERA reserves the right, in its sole discretion, to add, remove, or modify features of the Site at any time for any reason without liability to you. SCENERA may change, modify, add, or remove portions of these Terms at any time by making such modified terms available to you on the Site. If SCENERA materially modifies these Terms, it will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, after such material changes are made. Any changes to the Terms will be effective immediately for new users and will be effective thirty (30) days after posting notice of such changes on the Site for existing users. SCENERA may require you to provide consent to the updated Terms in a specified manner before further use of the Site is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site. Otherwise, your continued use of the Site constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
You agree that you will be responsible for your use of the Site, and you agree to defend, indemnify, and hold harmless SCENERA and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “SCENERA Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Site at any time; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. SCENERA reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with SCENERA’s defense of such claim.
- WARRANTY DISCLAIMER.
THE SITE, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SCENERA ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE SCENERA ENTITIES DO NOT WARRANT THAT THE SITE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING THE SCENERA ENTITIES, OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE, AND ANY MATERIALS OR CONTENT THROUGH THE SITE AND ANY ASSOCIATED SITES OR SERVICES IS AT YOUR OWN DISCRETION AND RISK.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL THE SCENERA ENTITIES BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITEOR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE SCENERA ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE SCENERA ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SITE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO SCENERA IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $10.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU ACKNOWLEDGE AND AGREE THAT SCENERA HAS OFFERED ITS SITE, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SCENERA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SCENERA.
EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- DISPUTE RESOLUTION.
- Applicability of Arbitration. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by SCENERA that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration clause. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration clause applies to you and SCENERA, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to SCENERA should be sent to: Scenera, Inc., 890 Robb Road, Palo Alto, CA 94306. After the Notice is received, you and SCENERA may attempt to resolve the claim or dispute informally. If you and SCENERA do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1- 800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Santa Clara County, California, USA. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or SCENERA pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and SCENERA, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and SCENERA.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration clause. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and SCENERA in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SCENERA WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION CLAUSE MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE PERSON OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this clause, to enforce an arbitration award, or to seek injunctive or equitable relief which may be taken outside of this Arbitration clause.
- Severability. If any part or parts of this Arbitration clause are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration clause may be waived in writing by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of the Terms of Service.
- Survival of Agreement. This Arbitration clause will survive the termination of your relationship with SCENERA.
- Small Claims Court. Notwithstanding the foregoing, either you or SCENERA may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration clause.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration clause.
- Courts. In any circumstances where the foregoing Arbitration clause permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Santa Clara County, California and federal courts located in the Northern District of California for such purpose.
- Governing Law. These Terms, whether interpreted in a court of law or in arbitration, shall be governed by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California by California residents, and without regard to conflict of law principles or the United Nations Convention for the International Sale of Goods.
- Entire Agreement. These Terms (including the various additional terms incorporated herein by reference) constitute the entire agreement between you and SCENERA, and supersedes any and all prior agreements, negotiations, or other communications between you and SCENERA, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties.
- Severability. In the event that any provision of these Terms is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from these Terms; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.
- Compliance with Laws. You agree to abide by all applicable laws in your use of the Site, including export control laws and similar regulations governing the transfer of software and other technology outside of the United States or other jurisdictions.
- Assignment. You may not assign these Terms without the prior written consent of SCENERA, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. SCENERA may assign these Terms without restriction. Subject to the foregoing, these Terms shall be binding on the parties and their respective successors and permitted assigns.
- Force Majeure. You acknowledge and understand that if SCENERA is unable to provide the Site as a result of a force majeure event SCENERA will not be in breach of these Terms. A force majeure event means any event beyond the control of SCENERA.
- Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in these Terms or by law shall not constitute a waiver of that right, power or remedy. SCENERA’s waiver of any obligation or breach of these Terms shall not operate as a waiver of any other obligation or subsequent breach of these Terms.
- Export. You may not use, export, import, or transfer information on the Sites, or any services accessible via the Site except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access to the Site, and any other applicable laws. In particular, but without limitation, the services accessible via the Site may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using services accessible via the Site, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- QUESTIONS, COMPLAINTS, AND CLAIMS.
If you have any questions, complaints or claims, please contact us at email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.