Wesa Thermal Application License and Terms of Service
Last updated: April 9, 2020
These Wesa Application License and Terms of Service (the “Terms”) govern the relationship between you and Wesa LLC, (hereinafter, “Wesa” “us,” or “we”) regarding (i) your use of Wesa NightRide for Android or other type of application (the “Application”) licensed by Wesa for use with Wesa’s thermal camera and hardware products (collectively, the “Products”), (ii) your use of the Products and (iii) your use of related services that complement or facilitate use of the Application or the Products (collectively, the “Services”). The Application, Products and Services are collectively referred to herein as the “Wesa Products and Services.” The terms “you,” “your,” and “yours” refer to the person or entity who is is accessing, viewing, browsing, visiting or using any of the Wesa Products and Services and is therefore bound by these Terms.
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE WESA PRODUCTS AND SERVICES. BY USING THE APPLICATION OR PRODUCTS OR BY ACCESSING OR USING THE SERVICES OR ANY CONTENT OFFERED THROUGH THE WESA THERMAL WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU AGREE TO NOT USE WESA PRODUCTS AND SERVICES AND ARE PROHIBITED FROM DOING SO. IF YOU HAVE ALREADY PURCHASED THE PRODUCT AND DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY RETURN THE PRODUCT FOR A FULL REFUND BY CONTACTING WESA THERMAL AT [email protected] TO LEARN ABOUT OUR RETURN PROCEDURES AND TERMS.
1. Licenses and Restrictions and Products Related Provisions.
1.1 License Grant For Services. Subject to your agreement and continuing compliance with these Terms and any other relevant Wesa policies, Wesa grants you a non-exclusive, non-transferable, revocable limited license to access and use the Services [and the Product] either through use of the Application or through a web browser. Anyone else who has been granted a right to use the Services is referred to generally as “Other Users” and you and Other Users are referred to as “All Users.”
1.2 Accounts. Certain aspects of the Services may require that you create an account (an “Account”) for accessing and managing your use of that certain of the Services and certain types of Services may not be available without an Account.
1.3 License Grant For Application and Application Related Terms. Subject to your agreement and continuing compliance with these Terms and any other relevant Wesa policies, Wesa grants you a non-exclusive, non-transferable, revocable limited license to install and run a copy of the Application. You agree not to reproduce or distribute any copies of the Application and not to reverse engineer, decompile, disassemble or otherwise seek to view the source code for the Application. You will update the Application to the latest version or remove the Application from the device that the Application is stored on upon request of Wesa.
1.4 Other Obligations and Restrictions. You are responsible for complying with all terms imposed by the entity distributing the Application. You are responsible for obtaining all hardware necessary to run the Application and for any fees, including, but not limited to internet connection, data, or mobile carrier fees that you incur when accessing the Services. You agree that you will at all times comply with all laws and regulations when using Wesa Products and Services.
1.5 Restrictions on Access To Services: The following restrictions apply to the use of the Services: (a) You will not use the Services if you are under the age of 15. (b) You accept full responsibility for any unauthorized use of the Services by anyone who uses your Account login or other information pretending to be you; (c) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself; (d) You shall not have an Account or use the Services if your Account or right of access has previously been removed by Wesa or you have previously been banned from using the Services; and (e) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Wesa’s written permission;
1.6 Account Information and Management.
1.7 License and Account Limitations and Prohibitions. (a) General Effects of Violations. Any use of the Services in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited licenses granted by Sections 1.1 and 1.3, and may subject you to liability for violations of law and breach of these Terms. (b) Activity Prohibitions. You agree that you will not, under any circumstances: (i) Engage in any act that Wesa deems to be in conflict with the spirit or intent of the Services, including but not limited to circumventing or manipulating these Terms; (ii) Advertise, solicit or transmit any commercial advertisements, including chain letters, junk e-mail or repetitive messages to anyone; (iii) Use the Services in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation; (iv) Without Wesa’s express written consent, modify or cause to be modified any files or content that are used to offer the Services; (v) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Services (each a “Server”) or (2) the enjoyment of the Services by any other person; (vi) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Services or other attempts to disrupt the Services or any other person’s use or enjoyment of the Services; (vii) Attempt to gain unauthorized access to the Services, Third Party Accounts, Servers or networks connected to the Services by any means other than the Application, including but not limited to circumventing or modifying, attempting to circumvent or modify or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Services; (viii) Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive; (ix) Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content; (x) Attempt to, or harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including Wesa employees or customer service representatives; (xi) Post, distribute or make available through the Services any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person; (xii) Transmit unauthorized communications through the Services, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items; (xiii) Interfere or attempt to interfere with the proper functioning of the Services or the Products or connect to or use the Services or the Products in any way not expressly permitted by these Terms; (xiv) Engage in the unauthorized access to Accounts of Other Users; (xv) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Services, whether through the use of a network analyzer, packet sniffer or other device; (xvi) Make any automated use of the Services or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion; (xvii) Bypass any robot exclusion headers or other measures we take to restrict access to the Services or use any software, technology or device to send content or messages, scrape, spider or crawl the Services, or harvest or manipulate data; (xviii) Use, facilitate, create or maintain any unauthorized connection to the Services, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Services or (2) any connection using programs, tools or software not expressly approved in writing by Wesa; (xix) Copy, modify or distribute rights or content from any Wesa site, including but not limited to content that contains or is protected by Wesa’s copyrights or trademarks or use any method to copy or distribute the content of the Services, except as specifically allowed in these Terms; (xx) Solicit or attempt to solicit personal information from other users of the Services; (xxi) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents or financial information through the Services; or (xxii) Upload or transmit (or attempt to upload or to transmit), without Wesa ‘s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.8 Suspension and Termination of Account and Services.
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WESA MAY LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE ACCOUNTS OR ACCESS TO SERVICES OE PRODUCTS OR PORTIONS THEREOF IF YOU ARE, OR WESA SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICES OR PRODUCTS, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME [AND PERSONA] AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICES OR PRODUCTS AND WESA IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS. (b) IP INFRINGEMENT. WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICES AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICES IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING OUR INTELLECTUAL PROPERTY RIGHTS OR THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. (c) Right to Cease Services. Wesa reserves the right to stop offering and/or supporting the Services or a portion of the Services at any time, at which point your license to use the Services or a part thereof will be automatically terminated. In such event, Wesa shall not be required to provide refunds, benefits or other compensation to Users in connection with such discontinued Services. (d) Termination of Account. The termination of your Account can include disabling your access to the Services, the Products or any part thereof, including any content you submitted or that others submitted. If your Account is terminated, you agree that Wesa has no obligation to provide you with access or copies of any content you have submitted as part of the Services. (e) Cancellation of Account. You may cancel any Account registered to you at any time by emailing [email protected]
1.9 Products Related Terms. Any use of Products requires the separate purchase by you of such Products. Products may contain limited warranties and the terms and applicability of such warranties are as listed at http://www.getnightride.com/
1.10 Intellectual Property Ownership in Wesa Products and Services. All intellectual property rights in Wesa Products and Services (including without limitation any computer code, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) are owned by Wesa or its licensors.
1.11 Third Party Notices. Certain licensors require that we provide you with notices and license terms or that we distribute such notices or license terms with the Application. You acknowledge that such notices and license terms and any other related information can be found at http://www.getnightride.com/
and you hereby agree that you shall be deemed to have received all notices and copies of such license terms.
2. Contributed Content.
2.2 License to User Content. You hereby grant Wesa a perpetual, irrevocable, worldwide, fully paid-up and royalty free, non-exclusive, sublicensable, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof. Wesa will only exercise the rights granted in this Section 2.2 to offer or to facilitate the offering of the Services and to improve, modify and market our Products and Services. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any User Content.
2.3 Content Screening.
(a) No Responsibility. Wesa assumes no responsibility for the conduct of any User submitting any User Content and assumes no responsibility for monitoring the Services for inappropriate content or conduct. (b) No Pre-Screening. We do not, and cannot, pre-screen or monitor all User Content. However, at our discretion, our representatives or technology may monitor and/or record your interaction with the Services or communications (including without limitation chat text) when you are using the Services. (c) Consent to Monitoring. By agreeing to these Terms, you hereby irrevocably consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any User Content, including without limitation chat text or voice communications. (d) Options Regarding User Content. Wesa may reject, refuse to post or delete any User Content for any or no reason, including, but not limited to User Content that in the sole judgment of Wesa violates these Terms. (e) Storage Capacity. Wesa reserves the right to limit the amount of User Content that you post on, through or in connection with the Services, in its sole discretion, based upon the amount of storage capacity that Wesa allocates for User Content. (f) Options Retained But No Responsibility; Certain Rights Regarding User Content. If at any time Wesa chooses, in its sole discretion, to monitor the Services, Wesa assumes no responsibility for User Content and assumes no obligation to modify or remove any inappropriate User Content. We have the right, but not the obligation, in our sole discretion to edit, refuse to post or remove any User Content.
2.4 User Interactions.
(a) Responsibility For Interactions. You are solely responsible for your interactions with Other Users and any other parties with whom you interact through the Services. Wesa reserves the right, but has no obligation, to become involved in any way with these disputes. (b) Release For Disputes. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
3. Fees and Purchase Terms. You agree to pay any and all fees and applicable taxes, if any, incurred by you through use of the Services or the purchase of the Products or anyone using an Account registered to you. Any required fees will be specified as part of the Services and Products or when you must register your Account. Wesa reserves the right in the future to charge fees for any parts of the Services that may have previously been offered without a fee. You understand that in the future Wesa may offer premium services as part of the Services that may require fees or additional fees. Wesa may revise the pricing for the goods and services offered through the Services at any time. YOU ACKNOWLEDGE THAT WESA IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PORTIONS OF THE SERVICES WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4. Third Party Advertising.
5. Copyright Notices; Complaints. It is Wesa’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to Wesa’s “Copyright Page” to review our DMCA procedures. Wesa reserves the right to terminate without notice any user’s access to the Services if that user is determined by Wesa to be a “repeat infringer.” In addition, Wesa accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
6. Updates to the Services and Application.
6.1 Updates to Services. You understand that the Services undergo frequent changes. Wesa may require that you accept updates to the Services or to the Application in order to continue using the Services or Application. You acknowledge and agree that Wesa may update the Services without notifying you.
6.2 Updates to the Application. The Services may not be fully functional if you use a version of the Application other than the latest version of the Application and you agree to cease use of an older version of the Application if requested by Wesa or Wesa publicizes that only the most recent version of the Application should be used by Application users.
7. Disclaimer; Limitations; Waivers on Liability; Indemnification.
Disclaimer of Warranties.
APPLICATION AND SERVICES PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE APPLICATION AND SERVICES IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). (b) LIMITED WARRRANTIES FOR PRODUCTS. THE PRODUCTS MAY HAVE CERTAIN LIMITED WARRANTIES. SEE SECTION 1.9 ABOVE FOR MORE INFORMATION. (c) NO WARRANTY OF ERROR-FREE OPERATION AND ASSUMPTION OF RISK. WITHOUT LIMITING THE FOREGOING, NEITHER WESA NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “WESA PARTIES”) WARRANT THAT THE WESA PRODUCTS AND SERVICES WILL PERFORM IN AN UNINTERRUPTED OR ERROR-FREE MANNER. YOU ASSUME ALL RISK FOR USE OF WESA PRODUCTS AND SERVICES AND ARE COMPLETELY RESPONSIBLE FOR TAKING ALL SAFETY AND SECURITY PRECAUTIONS NECESSARY FOR THE USE OF WESA PRODUCTS AND SERVICES. (d) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. WESA DOES NOT GUARANTEE THAT ANY INDIVIDUAL OR ANYONE WHO IS PART OF “ALL USERS” WILL ALWAYS BE PREVENTED FROM VIEWING INFORMATION OR CONTENT THAT THE SERVICES INTENDED TO NOT BE AVAILABLE TO SUCH INDIVIDUAL. WESA DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY ANY OF ALL USERS WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. WESA DOES NOT WARRANT THAT USER INFORMATION OR ANY INFORMATION POSTED BY A USER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY WESA OR THROUGH THE SERVICES.
(e) NO WARRANTY REGARDING WIFI ACCESS. YOU ACKNOWLEDGE THAT THE PRODUCT AND RELATED SERVICES MAY UTILIZE WIFI AND THAT THERE MAY BE AREAS IN WHICH THE PRODUCTS AND SERVICES ARE NOT ABLE TO ACCESS WIFI AND THEREFORE MAY BE INOPERABLE. IN ADDITION, IN THE EVENT THAT THERE ARE DIFFICULTIES IN THE PROVISION OF WIFI TO YOUR SITE, THE PRODUCT AND RELATED SERVICES MAY NOT OPERATE.
7.2 Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICES UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE WESA THERMAL PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES. (b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE WESA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE WESA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICES AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICES AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. (c) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU. (d) WITHOUT LIMITING ANY OF THE PROVISIONS SET FORTH IN THESE TERMS, IN NO EVENT SHALL WESA BE LIABLE TO YOU FOR ANY LOSSES YOU MAY SUFFER OR INCUR IN EXCESS OF THE FEES RECEIVED BY WESA FOR THE SERVICES DURING THE 12 MONTHS PRIOR TO ANY CLAIM BY YOU. (e) NO WARRANTY REGARDING WIFI ACCESS. YOU ACKNOWLEDGE THAT THE PRODUCT AND RELATED SERVICES MAY UTILIZE A LOCAL WIFI NETWORK FOR COMMUNICATION BETWEEN THE THERMAL UNIT AND CONSOLE AND THAT THERE MAY BE LOCATIONS IN WHICH SUCH WIFI IS RENDERED INACCESSIBLE DUE TO INTERFERENCE FROM OTHER WIFI NETWORKS. AT THOSE TIMES, THE SERVICE MAY BE INOPERABLE.
7.3 Indemnification. You agree to defend, indemnify, save, and hold the Wesa Parties harmless from any claims, losses, damages, liabilities, costs, penalties, interest and fine including legal fees and expenses, arising out of your use or misuse of the Services, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. Wesa reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Wesa and you agree to cooperate with Wesa’s defense of these claims. Wesa will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account or of the Services.
8. Dispute Resolution.
8.2 Exclusions from Arbitration. YOU AND WESA AGREE THAT ANY CLAIM FILED BY YOU OR BY WESA IN SMALL CLAIMS COURT OR BY WESA THERMAL RELATED TO PROTECTION OF WESA’S OR ANY WESA LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 8.
8.3 RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY WESA IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO WESA LEGAL COUNSEL, 90 STATE STREET, SUITE 700, OFFICE 40, ALBANY, NEW YORK 12207 AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH WESA THERMAL THROUGH ARBITRATION.
8.4 Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND WESA SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
8.5 Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Wesa elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org
, or JAMS www.jamsadr. com. The terms of this Section 8 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
8.6 Arbitration Procedures. Because the software and/or service provided to you by Wesa concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply, including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr. org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Wesa as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Wesa or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
8.7 Location of Arbitration. In the event of a dispute hereunder or arising out of your use of the Services or the Products, you or Wesa may initiate arbitration in either New York, New York or the county in which you reside. In the event that you select the county of your residence, Wesa may transfer the arbitration to New York, New York in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
8.8 Severability. If any clause within this Section 8 (other than the Class Action Waiver clause of Section 8.4) is found to be illegal or unenforceable, that clause will be severed from this Section 8 and the remainder of this Section 8 will be given full force and effect. If the Class Action Waiver (Section 8.4) clause is found to be illegal or unenforceable, this entire Section 8 will be unenforceable and the dispute will be decided by a court and you and Wesa each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
8.9 Continuation. The provisions set forth in this Section 8 shall survive any termination of the Terms.
9. General Provisions.
9.4 Supplemental Policies. Wesa may publish additional policies related to specific services such as forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms.
9.7 Notices. We may notify you via postings on www.edufii.com
9.8 Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Wesa are of a unique and irreplaceable nature, the loss of which may irreparably harm Wesa and which cannot be replaced by monetary damages alone, so that Wesa shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services and agree to limit your claims to claims for monetary damages, limited by Section 7.2 (if any).
9.9 Force Majeure. Neither Wesa nor any of its shareholders, officer, directors or representatives shall be liable for any delay or failure to perform or provide Services resulting from causes outside the reasonable control of Wesa, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Wesa’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.