Effective Date: May 19, 2016
Burner Terms of Service
IMPORTANT: BY USING THE SERVICE, YOU AGREE TO RESOLVE DISPUTES WITH AD HOC LABS, INC. THROUGH BINDING ARBITRATION (AND WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTIONS 9 AND 10 BELOW.
Ad Hoc Labs, Inc. (“Ad Hoc Labs,” “we,” “us,” “our”) provides this application, including any new features and related services, (collectively, the “Service” or “Services”) to you subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). To access and enjoy the Service, you, your heirs, and assigns (collectively, “you”) must agree to the Terms of Service and acknowledge that you are entering into a legally binding contract with us. If you do not agree to the Terms of Service, you should not use the Service.
1. Changes to the Terms of Service
We reserve the right, in our sole discretion, to change or modify portions of these Terms of Service at any time without further notice. You should periodically visit the Terms of Service so you are aware of any revision to which you are bound. If we do this, we will post the changes to these Terms of Service and will indicate the date they were last revised by the posted Effective Date. Your continued use of the Service after any such changes constitutes your acceptance of the new Terms of Service. It is your responsibility to regularly check the Terms of Service to determine if there have been changes to these Terms of Service and to review such changes.
2. Access and Use of the Service
A. Service Description: The Service is designed to allow users to obtain temporary telephone numbers for voice, SMS, and MMS use, as well as to make and receive voice calls, SMS, and MMS messages via these numbers.
B. Phone Service Required: An underlying wireless phone service is required to use the Service. You are solely responsible for procuring, maintaining, and paying for the underlying phone service that will connect calls made with the Service to your phone. Using the Service requires using your own voice minutes and data plan. Fees, service charges, per message and per-minute usage and other charges may be assessed by your underlying phone service provider for any calls received through the Service. Ad Hoc Labs is not responsible for your underlying phone service, for any calls made or messages sent across telecommunications networks which are not owned by Ad Hoc Labs, or for problems with your underlying phone service including but not limited to no service, poor reception, and dropped calls. When you use Burner to send messages, these messages will not be itemized on your wireless telephone invoice. Additionally, as explained in detail below, THE SERVICE CANNOT BE USED FOR 911 OR EMERGENCY CALLING. YOU MUST USE YOUR UNDERLYING PHONE SERVICE FOR 911 OR EMERGENCY CALLING.
D. Age Restrictions: If you are under 13 years of age, you are not authorized to use the Service, with or without registering. By using the Service, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live) or that you have reviewed the Terms of Service with your parent or guardian and he or she assents to the Terms of Service on your behalf and takes full responsibility for your compliance with them. You agree that you and/or your parent or guardian are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in these Terms of Service, and to abide and comply with these Terms of Service.
E. Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Ad Hoc Labs using the contact information in Section 18 below of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you log out from your account at the end of each session when accessing the Service. Ad Hoc Labs will not be liable for any loss or damage arising from your failure to comply with this Section.
F. Modifications to Service: Ad Hoc Labs reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Ad Hoc Labs will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
G. General Practices Regarding Use and Storage: You acknowledge that Ad Hoc Labs may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that a particular phone number or other content will be retained by the Service and the maximum storage space that will be allotted on Ad Hoc Labs’s servers on your behalf. You agree that Ad Hoc Labs has no responsibility or liability for the deletion or failure to store any data, conversations, texts or other content maintained or uploaded by the Service. You acknowledge that Ad Hoc Labs reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Ad Hoc Labs reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
H. Burner Premium Subscription: By signing up for Burner Premium and providing Ad Hoc Labs with your payment account information, you hereby agree to these payment terms and conditions. If you choose to subscribe to Burner Premium (“Premium Service”), you are signing up to an auto-renewing subscription requiring recurring payments and agree to pay the then current applicable Premium Service fee listed in the agreement. You will be billed for the subscription either through your credit card or through your intermediary provider such as iTunes, Google Play, or a similar app store (the “AppStore”). The fee will be billed on a monthly basis from the date you first subscribe to the Premium Service, and automatically on each monthly renewal thereafter, unless and until you cancel your subscription. All fees and charges are nonrefundable, and there are no refunds or credits for partially used periods.
Credit Card Billing. Credit card payments are processed by Stripe, our third-party payment processor.
If your subscription is based on credit card billing, we will automatically charge your credit card monthly for the cost of the Premium Service and any applicable taxes. If any fee is not paid in a timely manner, or we are unable to process your transaction using the credit card information provided, we reserve the right to revoke access to your Premium Service and use of Burner. If you do not bring your Burner balance current within thirty (30) days after we provide you with notification that your account is in arrears, we reserve the right to suspend or terminate your access to your Premium Service or convert your Burner Premium subscription to a non-subscription account. You will be responsible for paying all past due amounts. If your payment details change, your card provider may provide us with updated card details. We may use these new details in order to help prevent any interruption to the service. If you would prefer to opt out from this service, please contact us at email@example.com.
Intermediary Provider Billing. If your subscription is based on intermediary provider billing, your provider will automatically charge your AppStore account monthly for the cost of the Premium Service and any applicable taxes. If you are not current with your Premium Service payments, we reserve the right to suspend your access to your Premium Service or convert your Burner Premium subscription to a non-subscription account. You will be responsible for paying all past due amounts.
Cancellation. Your subscription will continue unless and until you cancel your subscription or we terminate it. You may cancel your subscription any time before each monthly renewal in order to avoid billing of the next period’s Premium Service fee to your chosen payment method. You may cancel your subscription by logging into app.burnerapp.com if you have a web-based subscription or by following your AppStore procedures to cancel. If you choose to cancel your Premium Service, you may use the Premium Service until the end of the current period but will not be issued a refund for the most recently (or any previously) charged monthly fees.
Burner reserves the right to discontinue or modify any subscription fee payment option. We may change the pricing for the Service by updating the website without any additional notice to you, provided that any changes will not take effect until your subscription renews. Also, if you are signing up under any promotional subscription fee, some additional restrictions may apply. These restrictions, if any, will be provided to you before you sign up for the applicable Premium Service that is subject to the promotion.
I. 911 Calling Not Available: THE SERVICE CANNOT BE USED FOR 911 OR EMERGENCY CALLING. You must make alternative arrangements to place 911 calls using your landline, mobile or cell phone and cannot rely on the Service for 911 calling capability.
AD HOC LABS DOES NOT OFFER 911 OR EMERGENCY CALLING FOR THE SERVICE. DO NOT USE THE SERVICE TO CALL 911 OR OTHER EMERGENCY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS NOT A SUBSTITUTE FOR A TRADITIONAL TELEPHONE AND THAT YOU WILL AT ALL TIMES HAVE AVAILABLE A MOBILE OR TRADITIONAL LANDLINE PHONE THAT CAN BE USED TO MAKE OUTBOUND CALLS, INCLUDING CALLING 911 OR ANY OTHER APPLICABLE EMERGENCY SERVICES.
You agree that Ad Hoc Labs, its directors, officers, employees, subsidiaries and assigns may not be held liable for any claim, damage, or loss (including, without limitation, any attorneys’ fees) by, or on behalf of, you or any third-party user arising from any attempt to dial 911 or make an emergency call using the Service. You hereby waive all claims and causes of action against Ad Hoc Labs, its directors, officers, employees, subsidiaries and assigns, arising from or relating to any attempt to dial 911 or make an emergency call using Ad Hoc Labs Services.
3. Conditions of Use
A. User Conduct: You are solely responsible for all communications of whatever type you hold or any content of any kind that you transmit via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by Ad Hoc Labs (“Prohibited Uses”).This list provides examples of Prohibited Uses and is provided by way of example and shall not be considered exhaustive. Ad Hoc Labs reserves the right to investigate and take appropriate legal action against anyone who, in Ad Hoc Labs’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to law enforcement authorities. You agree to not use the Service or any other services that are made available through the Service to:
· transmit any content that (i) publicly infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to hold or transmit under law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Ad Hoc Labs, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Ad Hoc Labs or its users to any harm or liability of any type;
· interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
· violate any applicable local, state, national or international law, or any regulations having the force of law;
· impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
· solicit personal information from anyone under the age of 18;
· harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
· create a false Caller ID identity (“ID spoofing”) header, or otherwise attempt to mislead others as to the identity of the sender or the origin of any communication made using the Services;
· use the Service to violate any third party rights or any third party’s terms and conditions of service;
· use the Service for call centers, conference calling, trunking (to a PBX or otherwise) or other high volume or multi-person calling purposes;
· further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
· attempt to do any of the foregoing.
You further understand and agree that:
· You shall be solely liable for any calls and/or content sent or received through the Service (including but not limited to misdirected calls, wrong number calls) and that Ad Hoc Labs has no control over calls received or the content of any transmission.
· You are solely responsible for all acts or omissions that occur under your account or password, including the content of your calls or that you transmit through the Service.
B. Notification of Prohibited Use: You shall notify us immediately upon becoming aware of the commission by any person of any Prohibited Uses of the Service by using the contact information listed in Section 18 below and shall provide us with reasonable assistance in any investigations we conduct in light of the information you provide.
C. Monitoring use of Service: You acknowledge that we have no obligation to monitor your access to or use of the Service, or to review or edit any content, but we have the right to do so: (a) for the purpose of operating and improving the Service (including without limitation for fraud prevention, risk assessment, enforcing our Reasonable Use Policy below, investigation and customer support purposes): (b) to ensure your compliance with the Terms of Service; (c) to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body; (d) to respond to content that we determine is otherwise objectionable or as set forth in the Terms of Service. We reserve the right, at any time and without prior notice, to remove or disable access to any content that we, in our sole discretion, consider to be objectionable for any reason, in violation of the Terms of Service or otherwise harmful to the Service. In order to protect the integrity of the Service, we also reserve the right at any time in our sole discretion to block users using any technologically available measures available in our sole discretion from accessing and using the Service.
D. Disclosure to Law Enforcement: You acknowledge and agree that Ad Hoc Labs may preserve content and may also disclose conversations, texts or other content (including but not limited to call logs and phone number records) if required to do so by law or in the good faith belief that such preservation or disclosure is necessary to comply with legal process, applicable laws or government requests, provided, however that Ad Hoc Labs will make an effort to notify affected users of any such disclosure unless prohibited from doing so by applicable law or valid legal process as determined in our sole good faith. Furthermore Ad Hoc Labs may preserve content to: (a) enforce these Terms of Service; (b) respond to claims that content violates the rights of third parties; or (c) protect the rights, property, or personal safety of Ad Hoc Labs, its users and the public. You understand that the technical processing and transmission of the Service, including your conversations, texts, or other content, may involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
E. Lawful Use: You represent and warrant that your use of the Service is lawful, does not violate any local, municipal, state, international or other laws and does not violate the rights of any third party. You further represent and warrant that you will only install and use the Service to record, monitor and publish communications where such recording and monitoring is authorized by law, except that the recording of voicemail messages is permissible.
F. Fees: You acknowledge that Ad Hoc Labs reserves the right to charge for any portion of the Service and to change its fees (if any) from time to time in its discretion. You agree to pay all fees when due in accordance with the terms set forth in the Service or on the Ad Hoc Labs website. You are responsible for paying all charges related to your account, including but not limited to, toll-free, local, long distance, data, roaming and directory assistance charges for your underlying phone service, and for all taxes and surcharges imposed on you or us as a result of your use of the Service.
G. Reasonable Use Policy: Unusually high usage of the Service attributable to individual accounts may impair Ad Hoc Labs’s ability to provide the Service to other customers and/or indicate misuse of the Service. Accordingly, reasonable use means that your use of the Service (i) does not materially impair Ad Hoc Labs’s ability to provide the Service to other users and (ii) is not used for any Prohibited Uses set forth in this Terms of Service. . Except where prohibited by law, if you violate the Reasonable Use Policy, you hereby acknowledge and agree that Ad Hoc Labs may modify, suspend, terminate, disconnect or take any other action regarding your Service to prevent continued violation of this Reasonable Use Policy.
H. Number Ownership: You understand and agree that the Service issues temporary phone numbers for limited time use. As such, you understand and agree that you are not the owner of any toll-free, local telephone number or any other number assigned to you by the Service, and further, you understand and agree that you may not port any such assigned number from the Service to another service provider. Certain telephone numbers may not be available for assignment but get issued to you in error. All assigned numbers are provided “as is” and Ad Hoc Labs makes no warranty, representation or guarantee that any assigned number will be usable or “clean” when assigned or anytime thereafter, and you understand and agree that Ad Hoc Labs may from time to time at its sole discretion change the telephone number assigned to you. Ad Hoc Labs will not be liable for any damages (including without limitation consequential or special damages) arising out of any such reassignment or change of a telephone number.
I. Number Availability: Ad Hoc Labs cannot guarantee that any specifically requested telephone numbers or area codes will be available or remain available. Ad Hoc Labs will not be liable for reimbursement for any expenses or any other damages you incur related to the assignment of a specific telephone number, including but not limited to business cards, stationery, event bookings, press releases or any other post or advertisement under any conditions, or for any other alleged damages, including without limitation consequential or special damages arising from any alleged failure to provide you with a specific telephone number or if your assigned number becomes unavailable or must be reassigned for any reason at any time.
J. Storage: Except where required by law, Ad Hoc Labs is not obligated to store your voicemails, sent/received calls, text messages, pictures, and/or other information maintained or transmitted by the Services. You agree that Ad Hoc Labs has no responsibility or liability whatsoever for the deletion or failure to store any voicemail and/or other information maintained or transmitted by the Service.
K. Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content. You represent and warrant that you are not (a) located in or a national or resident of any country that is subject to U.S. trade sanctions, or (b) a person or entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or acting on behalf of any person or entity on such list.
L. Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
4. Intellectual Property Rights
A. Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content (“Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Ad Hoc Labs, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally transmit via the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of Ad Hoc Labs, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Ad Hoc Labs.
The Ad Hoc Labs and Burner name and logos are trademarks and service marks of Ad Hoc Labs (collectively the “Ad Hoc Labs Trademarks”). Other Ad Hoc Labs, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Ad Hoc Labs. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Ad Hoc Labs Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Ad Hoc Labs Trademarks will inure to our exclusive benefit.
B. Third Party Material: Under no circumstances will Ad Hoc Labs be liable in any way for any content transmitted by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any recordings or content, or for any loss or damage of any kind incurred as a result of the use of any conversations or content held or transmitted via the Service. You acknowledge that Ad Hoc Labs does not pre-screen any numbers, conversations, texts or content, but that Ad Hoc Labs and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any recordings or content that are available via the Service. Without limiting the foregoing, Ad Hoc Labs and its designees will have the right to remove any numbers or content that violate these Terms of Service or are deemed by Ad Hoc Labs, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any conversations, texts or other content, including any reliance on the accuracy, completeness, or usefulness of such conversations, texts or content.
C. User Content Transmitted Through the Service: You are solely responsible for the content, conversations and other materials you hold or transmit through the Service or otherwise share with other users or recipients (collectively, “User Content”). You will not record, upload or transmit any content that you did not create or that you do not own all right, title and interest in and to, or that you do not have permission to record, upload or otherwise share including, without limitation, all copyright and rights of publicity contained therein. By using the Service or holding any conversation via the Service or otherwise providing, transmitting or recording any User Content you hereby grant and will grant Ad Hoc Labs and its Affiliates a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content, such rights to be used solely in connection with and for the purposes of operating the Service. The above shall not limit your right to use the service to leave or allow others to leave voicemail messages.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Ad Hoc Labs are non-confidential and Ad Hoc Labs will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
D. Copyright Complaints: Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content transmitted, sent or received using the Service for purposes of determining copyright infringement. However, Ad Hoc Labs reserves the right to terminate access to its Services if a user infringes on others’ copyrights, and will, in appropriate circumstances, terminate access to the Services if Ad Hoc Labs determines in its sole discretion that a user is a repeat infringer. To notify us of a copyright claim, please see Section 12 below.
5. Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Ad Hoc Labs has no control over such sites and resources and Ad Hoc Labs is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Ad Hoc Labs will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Ad Hoc Labs is not liable for any loss or claim that you may have against any such third party.
In addition, Ad Hoc Labs is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with social networking services. As such, Ad Hoc Labs is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such social networking services. Ad Hoc Labs enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
6. Indemnity and Release
You agree to release, indemnify, defend and hold Ad Hoc Labs and its affiliates and licensors, and each of our and their business partners, officers, employees, directors, representatives and agents harmless from and against any and all losses, liabilities, judgments, penalties, fines, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service or User Content, your connection to the Service, your violation of these Terms of Service, your violation of any law, or your violation of any rights of another. If you are a California resident, you 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
7. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AD HOC LABS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
AD HOC LABS MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY CALLS, TEXTS, CONVERSATIONS PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
8. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT AD HOC LABS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AD HOC LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONVERSATIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL AD HOC LABS’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID AD HOC LABS IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
9. Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
A. Federal Arbitration Act. The parties agree that this Terms of Service affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
B. Initial Dispute Resolution: Our Customer Service Department is available at firstname.lastname@example.org to address any concerns you may have regarding the Service. Our Customer Service Department is able to resolve most concerns quickly to our customer’s satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Customer Service Department and good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
C. Binding Arbitration: If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Application shall be finally settled by binding arbitration administered by JAMS and the JAMS rules and procedures governing arbitrations. The parties, however, agree that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to any claim that all or any part of these Terms of Service is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall no authority to find that any claim is subject to arbitration on a class basis or as part of another representative action.
To start an arbitration, you must do the following things: (a) write a Demand for Arbitration. The demand must include a description of the claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com; (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS, 500 North State College Blvd., Suite 600, Orange, CA 92868, 1-800-352-5267; and (c) send one copy of the demand for arbitration to us at 2658 Griffith Park Blvd, #134, Los Angeles, CA 90039.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Ad Hoc Labs will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Ad Hoc Labs will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If both parties agree, the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the JAMS Rules.
C. Location. If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For residents in Canada, arbitration shall be initiated in Los Angeles County in the State of California, United States of America, and you and Ad Hoc Labs agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County in the State of California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
D. Small Claims. You may choose to pursue your claim in small claims court where jurisdiction and venue over Ad Hoc Labs and you otherwise qualifies for such small claims court and where your claim does not include a request for any type of equitable relief.
E. Opt-Out. You have the right to opt out and not be bound by these arbitration provisions by sending written notice of your decision to opt out to the following postal address: 2658 Griffith Park Blvd, #134, Los Angles 90039. The notice must be sent within the later of thirty (30) days of your first use of the Service or within thirty (30) days of changes to this section being announced on the Service, otherwise you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Ad Hoc Labs also will not be bound by them. If you do not affirmatively elect to opt out as described above, your use of the Application will be deemed to be your irrevocable acceptance of these Terms And any changes/updates to this section or otherwise.
F. Changes to this Section. Ad Hoc Labs will provide 60 days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
G. Enforceability. If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, Ad Hoc Labs and you agree to waive, to the fullest extent allowed by law, any trial by jury.
10. Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Ad Hoc Labs and you agree that Ad Hoc Labs and you will resolve any disputes, claims or controversies on an individual basis, and that any claims arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability), the Service, any person’s access to and/or use of the Service, and/or the provision of content, products, services, and/or technology on or through the Service will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Ad Hoc Labs and you further agree that Ad Hoc Labs and you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability), the Service, any person’s access to and/or use of the Service, and/or the provision of content, products, services, and/or technology on or through the Service.
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in San Francisco, California.
This Class Action Waiver section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Ad Hoc Labs, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (such as with respect to their validity or enforceability), and/or the Service, and/or any person’s access to and/or use of the Service, and/or the provision of content, services, and/or technology on or through the Service.
You agree that Ad Hoc Labs, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and permanently remove access to the Service or any assigned numbers, for any reason, including, without limitation, for lack of use or if Ad Hoc Labs believes that you have violated or acted inconsistently with the letter and/or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Ad Hoc Labs may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Ad Hoc Labs may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Ad Hoc Labs will not be liable to you or any third-party for any termination of your access to the Service. In order to protect the integrity of the Services, Ad Hoc Labs also reserves the right at any time in its sole discretion to block users from accessing and using the Service.
12. International Transfer of Information
13. Digital Millennium Copyright Act Notices
Ad Hoc Labs respects the intellectual property rights of others and require those that use the Service do the same. We may, in appropriate circumstances and at our discretion, remove or disable access to material on the Service that infringes upon the copyright rights of others. We also may, at our discretion, remove or disable links or references to an online location that contains infringing material or infringing activity. In the event that any visitors to our websites or users of our Service repeatedly infringe on others' copyrights, we may in our sole discretion terminate those individuals' rights to use the Service.
If you believe that your work has been used on the Service in any manner that constitutes copyright infringement, please notify Ad Hoc Lab’s copyright agent by written notice. The notice should include the following information:
· An electronic or physical signature of a person authorized to act on behalf of the owner of the copyright allegedly infringed;
· A description of the copyrighted work you claim has been infringed, including a copy of the copyrighted work or the web page address where the copyrighted work may be found;
· Identification of the location on the Services of the material you claim has been infringed, or the link or reference to another website that contains the material you claim has been infringed;
· Your name, address, telephone number and email address;
· A statement by you that you have a good faith belief that the disputed use of the material at issue is not authorized by the copyright owner, the agent of the copyright owner or the law; and
· A statement by you that the information in this notification is accurate and a statement, under penalty of perjury, that you are the copyright owner of the material allegedly infringed or authorized to act on the copyright owner's behalf.
In order to make claims of copyright infringement through the use of the Services, please send your notice as follows:
By mail: 2658 Griffith Park Blvd # 134, Los Angeles, CA 90039
By email: email@example.com
By facsimile: 323-372-3594
14. User Disputes
You agree that you are solely responsible for your interactions and conversations with any other user in connection with the Service and Ad Hoc Labs will have no liability or responsibility with respect thereto. Ad Hoc Labs reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and Ad Hoc Labs and govern your use of the Service, superseding any prior agreements between you and Ad Hoc Labs with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above in Section 9, you and Ad Hoc Labs agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles County, California. The failure of Ad Hoc Labs to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail.
16. Terms Specific to Apple, Inc.
The Service is intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), and as such, the following terms and conditions apply:
· Ad Hoc Labs and you acknowledge that these Terms of Service are concluded between Ad Hoc Labs and you only, and not with Apple, and that as between Ad Hoc Labs and Apple, Ad Hoc Labs, not Apple, is solely responsible for the Service and the content thereof.
· You may not use the Service in any manner that is in violation of or inconsistent with the Usage Rules set forth for Service in, or otherwise be in conflict with, the App Store Terms of Service.
· Your license to use the Service is limited to a non-transferable license to use the Service on an iPhone or other iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
· Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Service.
· Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Service to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Ad Hoc Labs’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
· Ad Hoc Labs and you acknowledge that Ad Hoc Labs, not Apple, is responsible for addressing any claims of you or any third party relating to the Service or your possession and/or use of that Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service 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 Service or your possession and use of the Service infringes that third party’s intellectual property rights, as between Ad Hoc Labs and Apple, Ad Hoc Labs, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
· 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.
· Any questions, complaints or claims with respect to the Service should be directed to Ad Hoc Labs as follows:
Ad Hoc Labs, Inc.
Attn: Burner TOS manager
2658 Griffith Park Blvd, #134
Los Angeles, CA 90039
Ad Hoc Labs and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Service, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Service as a third party beneficiary thereof.
17. Your Privacy
18. Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
19. Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.