The following key points of this User Agreement are brought for your convenience only. They do not substitute the full Terms, which follow below.
- The Service. A platform that enables you, in conjunction with devices separately purchased from us or through one of our authorized distributors (each a “Device”) to monitor your aquarium and to remotely control various parameters related to the aquarium, such as temperature, wave intensity, light intensity, etc. The Service is for use only with our Devices. The nature of the Service may change from time to time. We do not guarantee that any specific element of the Service will remain operational or will not change. Please read the Manual provided with your Devices carefully. You shall be liable for any failure to comply with the instructions in the Manual. The updated Manual can always be found at: Download Center.
- Registration. The Service is available for its registered users. You are responsible if you provide any access to the service (or any password required for use of the Service) to any third party.
You acknowledge that we may provide you with notifications, warnings or suggestions based on the metrics generated and other information we gather from you. You acknowledge that such notifications, warnings or suggestions may be based on false positives or false negatives and that we do not guarantee the accuracy thereof and take no responsibility for your decision to act (or not act) based on such notifications, warnings or suggestions. You are responsible to independently verify any and all notifications warnings or suggestions provided by us. In addition, we do not guarantee that we will provide you with specific notifications, warnings or suggestions and we do not take responsibility for doing so. It is your responsibility, at all times, to manually check your aquarium and ensure that it is functioning correctly.
- Connectivity Modes.
You acknowledge that If your Devices are in the “Offline Mode” or “Direct Mode”, all or certain parts of the Service may not be available. In addition, without connectivity, all or many parts of the Service may not function, including the provision of notifications and your ability to control the Devices.
- Fees. By purchasing your Device(s) you receive the right to use our basic Services. We reserve the right to charge additional fees, for certain premium aspects of the Service, in which case we will first notify you.
- Intellectual property. All legal rights in the Service, including all intellectual property rights belong to us.
- Disclaimer of warranty. The Service is provided for use “as is”. We disclaim all warranties and representations with respect to the Service. We do not guarantee that any metrics, notifications, warnings or suggestions provided to you by the Services will be accurate or that you will receive such on a timely basis. Please review the full disclaimers set out in these Terms.
- Termination; Suspension. We may at any time discontinue or terminate the operation of the Service (or part thereof) in the event that you breach our terms or in the event that we cease providing such Service (or part thereof), including if we cease providing the Service (or part thereof) where you reside. At any time, we may suspend the Service in the event that you breach our terms or if we believe that there is a risk that you shall do so. We may also, from time to time, suspend the services for internal reasons, for example for maintenance purposes or due to our third-party suppliers.
- Limitation of liability. Our liability to you is limited. Please review in the relevant sections in the main part of these Terms.
- Law & jurisdiction. Use of the Service is governed by the laws of New York, NY. MOST DISPUTES BETWEEN US WILL BE DECIDED BY ARBITRATION AND NOT BY A COURT OF LAW OR A JURY.
.… and in detail
Please read this User Agreement in depth. By signing up to or using the Service (as defined hereunder) you agree to the terms hereof (the “Terms”). If you do not agree to the Terms, please do not use the Service, or stop using the Service immediately.
ABOUT US AND THE SERVICE
The Service provided hereunder (the “Service”) enables you, through our App (the “App”) and in conjunction with devices separately purchased from us or through one of our authorized distributors (each a “Device”) to monitor your aquarium and to remotely control various parameters related to the aquarium, such as temperature, wave intensity, light intensity, etc. The Service is provided, owned and operated by [RED SEA INC] or one of its affiliates (“Red Sea”, “we” “us” and “our”).
You may use the Service only with our Devices. Use of the Service with any other third-party device violates the terms of this User Agreement. You shall be responsible for any damages caused by such use and we shall have no responsibility for any such use.
As our scope develops, the nature of the Service may change. We may, at any time and without prior notice change the layout, design, scope, features or availability of our App and the Service.
Upon purchase of your Devices, you were provided with a copy of our Installation and Operation Manual (the “Manual”). Please read the Manual carefully, as it provides guidelines to the Services provided hereunder. You agree to follow all instructions provided by the Manual. We shall not have any responsibility for your failure to do so. Please note that as we widen the scope of the Service, and as we develop additional Devices, the Manual may be amended from time to time. The latest version of the Manual can always be found at: Download Center. You are responsible to ensure that you follow the instructions of the most up-to-date Manual.
Use of the Service may be subject to additional terms and conditions that govern the use of your cellular devices, application marketplaces or other services that interact with the App. You alone are responsible for complying with such additional terms and conditions.
We do not guarantee the accuracy of the Metrics and you acknowledge that any action taken by you with respect to the Metrics, or based on the Metrics is at your own risk.
Based on the Metrics and on other information collected by us, you may receive various notifications, suggestions or warnings with respect to your aquarium (collectively, the “Notifications”). We do not guarantee that any or all problems with respect to your aquarium will be picked up by our Notifications. As well, misdetections may occur. Furthermore, we have no obligation to provide Notifications and we therefore advise that you do not rely on receiving such Notifications, but that you monitor your aquarium manually to ensure that it is functioning correctly.
You acknowledge that notwithstanding our efforts to provide you with accurate Notifications, the Notifications provided may be based on false positives or false negatives, and that we do not guarantee the accuracy thereof. You should independently verify any and all Notifications.
- You are solely and exclusively responsible to thoroughly review the Metrics frequently, and to verify the metrics by checking your aquarium manually. In addition, you are responsible to verify the Notifications, address the findings specified therein and determine what actions are appropriate in light of them.
- You are solely and exclusively responsible for all actions you take in response to the Metrics and Notifications.
- You are solely and exclusively responsible to carry out such actions as you deem appropriate as a result of the Metrics and Notifications.
We are not responsible or liable for your reliance upon, or use of, the Metrics or the Notifications, your actions in connection therewith, or any consequences resulting from them.
THOUGH WE MAKE EFFORTS TO HAVE THE METRICS and the notifications BE COMPLETE AND ACCURATE, We do not guarantee and make no representation about the accuracy, adequacy, completeness, credibility, authenticity, validity, or integrity of the METRICS or the notification.
As specified in the Manual, your Devices may be connected in three different modes, “Online Mode”, “Offline Mode” and “Direct Mode”. You acknowledge that in each of the Offline Mode and the Direct Mode, all or certain parts of the Service may not be available. You are responsible to ensure that your Devices are in the correct mode at all times. You specifically acknowledge that without connectivity to your Devices, all or many parts of the Service may not function, including the provision of Notifications, and your ability to control various parameters of your aquarium and Devices. It is your responsibility to ensure connectivity at all times. We are not responsible for any failure of connectivity.
You also acknowledge that your Device may be installed with a back-up battery for use in the event that your power supply fails. We are not responsible for the functioning of such battery, and you are required, at all times, to ensure that the battery functions as required.
IN NO EVENT WILL WE BE LIABLE FOR ANY ADVERSE EVENTUALITIES, INCIDENTS OR INJURIES TO YOUR AQUARIUM THE FLORA AND FAUNA THEREIN, OR OTHERWISE, RESULTING FROM LACK OF CONNECTIVITY, FAILURE OF BATTERY, LACK OF POWER SUPPLY OR FAILURE TO USE THE CORRECT OR NECESSARY CONNECTIVITY MODE.
Information you provide. The Service is available only to registered users. You must be at least 18 years of age or older in order to register for the Service. In order to register for the Service, you must download our App to your cellular device.
False information. If we believe that the Registration Information you provide is false, deceptive or offensive, or if we believe that you violated these Terms, we reserve the right to suspend or terminate your user account or your access to the Service.
Additional Information. We reserve the right to request additional information to verify your identity, during the registration process, or throughout your use of the Service.
By purchasing your Device(s) you receive the right to use our basic Services. We reserve the right to begin charging fees for a premium version of the Service, in which case we will first notify you.
Prohibited use. When using the Service, you must refrain from –
- Breaching these Terms or any other applicable rules and instructions that we may convey with respect to the Service;
- Engaging in any activity that constitutes or encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, including laws governing privacy, defamation, spam and copyright;
- Interfering with, burdening or disrupting the functionality of the Service;
- Breaching the security of the Service or publicly identifying any security vulnerabilities in it;
- Circumventing or manipulating the operation or functionality of the Service, or attempting to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;
- Sending automated or machine generated queries;
- Using robots, crawlers and similar applications to collect and compile content from the Service or send data to the Service including for the purposes of competing with the Service, or in such ways that may impair or disrupt the Service’s functionality;
- Displaying or embedding content from the Service, including by any software, feature, gadget or communication protocol, which alters the content or its design;
- Impersonating any person or entity, or making any false statement pertaining to your identity or affiliation with any person or entity;
- Collecting, harvesting, obtaining or processing personal information regarding the Service’s users, without their prior explicit consent;
- Abusing, harassing, threatening or intimidating other users of the Service;
You are solely responsible for the content you make available through the service and for the consequences associated with doing so.
Our intellectual property. All rights, title and interest in and to the Service, including patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights and any goodwill associated therewith, are the exclusive property of Red Sea and its licensors. This includes our App’s design, graphics, computer code, “look and feel” and our domain names.
Restrictions. You may not copy, distribute, display or perform publicly, make available to the public or communicate to the public, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use of, process, compile, translate, sell, lend, rent, reverse engineer, combine with other software, modify or create derivative works of our App or the Service or any part thereof, in any way or by any means.
You may not use any name, mark, logo or domain name that is confusingly similar to our marks, logos and Internet domain names. You must refrain from any action or omission that may dilute, or damage our goodwill.
Terminating Your Account. You may, at any time, request to terminate your account by contacting us at [email protected] . Please note that merely uninstalling the App won’t delete your account and its details, including all the information associated with it, which would still remain on our systems.
We may cease providing you with the Service (or any part thereof) if we determine that you breached these Terms or in the event that we cease providing such Service (or any part thereof) where you reside. At any time, we may suspend the provision of the Service in the event that you breach these Terms or if we believe that there is a risk that you shall do so. We may also, from time to time, suspend the Service for internal reasons such as for purposes of maintenance or for reasons due to our third-party suppliers.
Upon termination for any reason, your right to use the Service is terminated and you must immediately cease using the Service; and we will not be liable to you for termination of access to the App.
Changes TO THESE TERMS
We may revise these Terms, in whole or in part, at any time by putting you on notice of the amended Terms. Your continued use of the App and the Services after the effective date of the amended Terms constitutes your consent to the amended Terms.
DISCLAIMER OF WARRANTY
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE AND OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS AND AFFILIATES (THE “RED SEA PARTIES” )DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, ITS METRICS AND NOTIFICATIONS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANSHIP, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, UTILITY, ACCURACY, OR EXPECTED BENEFITS.
WE DO NOT WARRANT THAT (1) THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS IN ANY WAY; (2) THE SERVICE WILL ALWAYS BE AVAILABLE OR FREE FROM MALWARES, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS; (3) THE QUALITY OF THE SERVICE AND METRICS AVAILABLE THROUGH OR IN THE APP, WILL MEET YOUR EXPECTATIONS; (4) THE METRICS AND NOTIFICATIONS PRESENTED THROUGH THE APP WILL BE ACCURATE, BENEFICIAL OR RELIABLE; (5) THE RESULTS OF THE USE OF THE SERVICE WILL BE SATISFACTORY AND WILL FIT YOUR EXPECTATIONS OR REQUIREMENTS.
NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICE, OR THE METRICS OR NOTIFICATIONS PRESENTED ON OR THROUGH THE APP, WHETHER OR NOT MADE BY US, WHICH IS NOT EXPRESSLY CONTAINED IN THESE TERMS, SHALL BE DEEMED TO BE A WARRANTY BY THE INVOLVED PERSONS FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY TO US WHATSOEVER.
YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE APP IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT DEROGATION TO OTHER PROVISIONS LIMITING OUR LIABILITY HEREIN, WE SHALL NOT BE LIABLE, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGE INCLUDING BODILY INJURY OR OTHER DAMAGE CAUSED BY USING THE SERVICE, OR ANY SIMILAR DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION WITH THE SERVICES OR THESE TERMS, INCLUDING WITH RESPECT TO :
- THE METRICS OR THE NOTIFICATIONS (OR FAILURE TO PROVIDE METRICS OR NOTIFICATIONS)
- THE USE OF, OR THE INABILITY TO USE THE SERVICE OR ITS FEATURES;
- ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE;
- ANY FAULT, OR ERROR MADE BY US OR ON OUR BEHALF, OR FROM YOUR RELIANCE ON METRICS OR NOTIFICATIONS AVAILABLE ON OR THROUGH THE APP;
- ANY COMMUNICATION THROUGH THE SERVICE;
- ANY DENIAL OR CANCELATION OF YOUR USER ACCOUNT;
- ANY ADVERSE EVENTUALITIES, INCIDENTS OR INJURIES TO YOUR AQUARIUM, THE FLORA AND FAUNA THEREIN, OR OTHERWISE, RESULTING FROM PROBLEMS that the SERVICE DID NOT DETECT IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL, MAXIMUM AND AGGREGATE LIABILITY TO YOU FOR DAMAGES WITH RESPECT TO THE SERVICES OR OTHERWISE UNDER THESE TERMS SHALL BE LIMITED TO US$500 (FIVE HUNDRED AMERICAN DOLLARS)
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, WE WILL BE FULLY RELEASED FROM OUR OBLIGATIONS AND LIABILITY TO YOU IF YOU HAVE BREACHED THESE TERMS, ANY OTHER TERMS, RULES OR REGULATIONS APPLICABLE TO THE SERVICE, OR IF THROUGH YOUR USE OF THE SERVICE, YOU INFRINGED OR VIOLATED ANY OTHER PERSON’S RIGHTS.
To the maximum extent permitted by law, you will indemnify and hold harmless at your own expense, the Red Sea Parties, from and against any damages, costs and expenses, resulting from any claim, allegation or demand, connected with your use of the Service, your breach of these Terms or infringement of any other person’s rights.
Your use of the Service may be subject to additional third party terms and conditions that govern that application marketplace from which you downloaded the App, such as iTunes, Google Play or Amazon App-store for Android. Such third parties are not responsible for providing maintenance and support services with respect to the App.
The following terms apply if you downloaded an App from Apple’s App Store. You and us agree and acknowledge as follows:
These Terms are concluded between yourself and us, and not with Apple Inc. (“Apple”). Apple is not responsible for the App. In the event of a conflict between these Terms and the App Store Terms of Service then the App Store Terms of Service will prevail, solely with respect to the conflicting provisions.
The license granted to you for the App is limited to a non-transferrable license to use the App on any iOS Products that you own or control, and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such App may be accessed, acquired, and used by other accounts associated with the purchaser via Family Sharing.
In the event of a failure to conform to any applicable warranty (if any warranty is applicable), you may notify Apple, and Apple will refund the purchase price for the App to you (if you paid any). Apple has no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, will not be at Apple’s responsibility.
Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the App or your possession and use of the App infringes that third party’s IP Rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such infringement claim.
You must comply with applicable third party terms of agreement when using the App (e.g. you must not be in violation of your wireless data Services agreement when you use the App).
Apple and Apple’s subsidiaries are third party beneficiaries of these Terms. Upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof. 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.
Governing Law, jurisdiction
Regardless of your place of residence or where you access or use the Service from, these Terms and your use of the Service will be governed by and construed solely in accordance with the laws of New York, NY, excluding any otherwise applicable rules of conflict of laws.
Regardless of your place of residence or where you access or use the Services from, or where you have purchased the Devices, this User Agreement and your use of the Devices and the Services will be governed by and construed solely in accordance with the laws of the State of New York, NY excluding any otherwise applicable rules of conflict of laws, which would result in the application of the laws of a jurisdiction other than the State of New York.
Any and all disputes, claims or controversies between you and us regarding this User Agreement or the use of the Devices or Services, which are not amicably resolved, shall be settled through binding arbitration (rather than in court) administered by the American Arbitration Association (AAA), under its Commercial Arbitration Rules (which are available at www.adr.org). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The Federal Arbitration Act and federal arbitration law apply to this User Agreement.
In arbitration, rulings of law and findings of fact are made by a privately appointed arbitrator, not a public judge or jury. The arbitrator is bound by the same substantive law as a judge, and may award damages and other relief in the same manner as a court (including injunctive and declaratory relief or statutory damages), but the arbitrator is not bound by the rules of procedure applied by courts. Also unlike litigation (in which there is a right to appeal), in arbitration, the parties’ ability to challenge the final award in court is very limited.
Payment of filing, administration and arbitrator fees will be governed by the AAA’s Commercial Arbitration Rules. These fees will be shared equally by you and us, unless the arbitrator: (i) determines that the claims are frivolous, in which case the claimant shall bear all such fees arising from the frivolous claim; or (ii) determines that the fees should be allocated differently.
Notwithstanding anything to the contrary in this section, either party may file: (a) an impleader claims against the other party in any court of competent jurisdiction; (b) in any court of competent jurisdiction a claim concerning the infringement (or alleged infringement) of intellectual property rights. We shall be entitled to seek temporary or other injunctive or equitable relief in any court with competent jurisdiction, and we may file a claim for monies due in any court with competent jurisdiction.
WE AND YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER OF US IS PERMITTED BY COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, WE BOTH AGREE THAT (i) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS USER AGREEMENT), AND (ii) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
Assignment. You may not assign or transfer your rights and obligations under these Terms without our prior written consent. Any attempted or actual assignment by you, without our prior written consent, shall be null and void. We may assign and transfer our rights and obligations under these Terms, provided that notice is provided to you thereafter.
Severability. If any provision of these Terms is held to be illegal, invalid, or unenforceable by a competent court, then the provision shall be performed and enforced to the maximum extent permitted by law to reflect as closely as possible, the original intention of that provision, and the remaining provisions of these Terms shall continue to remain in full force and effect.
Interpretation. The section headings in these Terms are included for convenience only and shall take no part in the interpretation or construing of these Terms. Whenever used in these Terms, the term “Including”, whether capitalized or not, means without limitation to the preceding phrase. All examples and e.g. notations are illustrative, not exhaustive.
Entire agreement. These Terms constitute the entire agreement between you and us concerning the subject matter herein, and supersede all prior and contemporaneous negotiations and oral representations, agreements and statements.
Waivers. No waiver, concession, extension, representation, alteration, addition or derogation from these Terms by us, or pursuant to these Terms, will be effective unless consented to explicitly and executed in writing by our authorized representative. Failure on our part to demand performance of any provision in these Terms shall not constitute a waiver of any of our rights under these Terms.
Relationship. These Terms do not create any agency, partnership, employment or fiduciary relationship between you and us.
At any time, you may contact us with any question, request, comment or complaint that you may have with respect to the Service or these Terms, at: [email protected]
Effective Date: March 20, 2019.