TERMS OF SERVICE
(Effective Date: December 1, 2013)
EACH TIME YOU USE OR ACCESS THE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) THESE TOS, DO NOT USE OR ACCESS THE SERVICE. YOUR CONTINUED ACCESS AND USE OF THE SERVICE SHALL BE DEEMED TO CONSTITUTE YOUR AGREEMENT TO BE LEGALLY BOUND BY THESE TOS, AS THEY MAY BE AMENDED FROM TIME TO TIME. ANY REFERENCES HEREIN TO “YOU” AND “YOUR” REFER TO BOTH YOU AND SUCH PERSON AND ENTITY ON WHOSE BEHALF YOU ACT, IF ANY.
In some instances, both these TOS and separate terms of service, rules, policies or guidelines set forth additional conditions that may apply to the Service or other products offered by the Company, including, without limitation, the Scentee balloon™ and Scentee device (“Additional Terms”). To the extent there is a conflict between the TOS and any Additional Terms, the Additional Terms will control unless the Company determines otherwise, in its sole and absolute discretion.
(b) Limitations. The license granted to you is subject to the following limitations. You shall not or permit any other person to:
(i) in whole or in part, (1) modify or create any derivative work of the Service, including Company Materials (defined below), Application or Software, or (2) copy, photocopy, reproduce, translate, disassemble, reverse engineer, decompile, or otherwise attempt to derive source code, underlying ideas, algorithms, structure, or organization of the Application or Software;
(ii) modify, alter or remove any copyright, patent, confidentiality, trademark and other notices, labels or legends in any Company Materials, Application or Software;
(iii) sell, grant a security interest in or transfer reproductions of any Company Materials, Application or Software to other parties in any way not expressly authorized herein;
(iv) assign, rent, lease, distribute or license any Company Materials, Application or Software to others;
(v) use any third-party software to modify the Application or Software;
(vi) create or maintain, under any circumstance, any unauthorized connections to the Service. All connections to the Service may only be made through methods and means expressly approved by the Company. Under no circumstances may you connect, or create tools that allow you or others to connect, to the proprietary interface or interfaces other than those expressly provided by the Company for public use; or
(vii) use your Account or the Service to engage in any illegal conduct.
(c) Additional Agreements.
(i) You agree to use the Service only in compliance with these TOS, and applicable rules, laws and regulations, including applicable tax laws.
(ii) You represent and warrant that you are not prohibited from receiving exports or services under any applicable export laws.
(iii) You agree to comply with all local laws and regulations regarding the upload, download, installation, storage, processing and/or use of the Application and/or Software.
(iv) You agree not to impersonate another person, indicate that you are a Company or affiliate employee or agent, or attempt to mislead users by indicating that you represent Company or any of Company’s licensors or affiliates.
(v) You agree not to attempt to get an Administrator ID, User ID, password, or other Account (defined below) information, or any other private information from a user or any other User.
(vi) You agree not to engage in or promote or encourage any illegal or fraudulent activity including hacking, cracking or distribution of counterfeit software, or identity theft.
(vii) You agree not to breach or circumvent any security or verification features of the Service, or access or damage any unauthorized areas of the Service.
Your failure to comply with the restrictions and limitations listed above and elsewhere in these TOS shall result in immediate (without notice), automatic termination of the license granted hereunder, your Account, and may subject you to civil and/or criminal liability. Moreover, under no circumstances will the Company have any liability of any kind as a result of your failure to comply with these TOS.
2. IP OWNERSHIP
(a) Service. The Company and/or its licensors retain exclusive right, title and interest (including any and all intellectual property rights) in and to all materials that are part of the Service (including past, present and future versions), including, without limitation: graphics; layout; text; images; audio and/or video; designs; advertising copy; logos; domain names; trade names and marks; and service marks; any and all copyrightable material; the “look and feel” of the Service; the compilation, assembly and arrangement of the materials of the Service; and all other materials or content made available on the Service (collectively, the “Company Materials”) and such Company Materials are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties.
(b) Trademark Notice. Scentee™, Scentee™, Scentee logo(s) and the Scentee logo(s) are trademarks and service marks of the Company and/or its licensor(s). All rights are reserved. All other trademarks and service marks appearing in the Service are the property of their respective owners. All rights are reserved. Use of any of our trademarks, service marks or names as “metatags” for any purpose other than as expressly authorized in these TOS is strictly prohibited.
(c) Software and Application. The Company and/or its licensors retain exclusive right, title and interest (including all intellectual property rights) in and to the entire content of the Service, including, without limitation, the Software and Application, copies thereof, and all error corrections, bug-fixes, patches, updates, derivative works, improvements, modifications thereto (whether made by the Company, its licensors, you, or otherwise), any related documentation, and “applets” incorporated into the Software and Application. The rights described in the foregoing sentence are the copyrighted work of the Company and/or its licensors and are protected by the copyright laws of the United States, international copyright treaties and conventions, and/or other applicable rules, laws and regulations.
(d) Third Parties. The Software and Application may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Software and Application falls under the scope of these TOS. Any and all other third party software or technology that may be distributed together with the Software or Application will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with the Company regarding such third party software or technology and you will look solely to the applicable third party and not to the Company to enforce any of your rights.
(e) Feedback. Feedback consists of any of your suggestions, comments or other feedback whether it is required or provided on a voluntary basis, relating to the Service (“Feedback”). If you provide us with any Feedback, you hereby grant to the Company a world-wide, royalty-free, irrevocable, perpetual license to use and other incorporate any Feedback in connection with the Service or any other Company service. Moreover, you agree not give the Company any Feedback (i) that you know or have reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (ii) that is subject to license terms that seek to require any Service incorporating or derived from any Feedback, or other Company intellectual property, to be licensed or otherwise shared with any third party.
(f) No Additional Rights. Only those licenses expressly set forth in these TOS are granted. No other licenses are granted under these TOS, whether by implication, estoppel, course of conduct, or otherwise. Nothing in these TOS is intended to transfer any of the right, title and interest (including all intellectual property rights) from the Company and/or its licensors to you or any third party. If you are ever inadvertently or erroneous held or deemed to be the owner of any such rights, you agree to assign and hereby irrevocably assign to the Company or its licensors, as the case may be, all such rights as of the effective date of these TOS, and agree to execute all documents to implement and confirm the letter and intent of the foregoing.
3. ACCOUNT; BILLING AND TERMINATION
(a) Account Setup. You may access certain parts of the Service without establishing an Account (defined below). However, by establishing an Account and become a registered member (“Member”), you can access the entire Service.
(i) User Account. You may establish your own user account (“User Account”) by: (A) downloading the Application via Apple Store or Google Play and (B) completing the applicable registration process. A User Account may also be established through the Administrator Account described below.
(ii) Administrator Account. An administrator account (“Administrator Account” and together with the User Account, the “Account”) may also be established by completing the applicable registration process. An administrator (the “Administrator”), must provide such information as may be requested during the registration process and any applicable form(s), including, without limitation, information for designated users (“User”) for the Administrator Account who will have rights to establish individual User Accounts, the applicable number of User licenses, the applicable account type and payment information (if applicable). Each User designated by the Administrator may establish his or her own User Account by: (A) downloading the Application via Apple Store or Google Play and (B) access the Service, by using the password provided by the Administrator. Each such User acknowledges and agrees that an Administrator may access and manage your User Account, including, without limitation, reset your password, or suspend or cancel your User Account, and/or view your profile and usage information.
(iii) Requirements. You must provide current, truthful, complete and accurate information during the Account registration process, and maintain and promptly update such information to keep it current, true, complete and accurate. The Company may approve or reject any Account registration for any reason or no reason in its sole and absolute discretion, and may withdraw an approval at any time. All such decisions shall be final and under no circumstance shall Company be obligated to provide any information regarding its decision-making process. The Company will notify you via the Site, email or other method elected by the Company of its approval of an Account registration and issue an Administrator ID or User ID, as applicable. You are solely responsible for all activity on your Account and for the security of your Authorized Device. With the exception of the Administrator, you may not reveal your Account password or permit anyone to access your Account. The Company will not ask you to reveal your password or ever initiate any contact with you by asking for your personal information. If you forget your password, we will send it to you after we confirm your identity. The Company will not be liable for any loss or damage arising from any authorized use of an Account.
(iv) No Ownership. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in an Account, and you further acknowledge and agree that all rights in and to an Account are and shall be owned solely and exclusively by the Company. No rights conferred to you in connection with the Service (including any Company Materials) may be transferred or assigned by you (by operation of law or otherwise including at the time of cancellation of an Account) to any third party without the prior written consent of the Company.
(b) Service Fees and Charges. You may create an Account on a free or paid basis. Free Accounts have limited Service features and functions, and are subject to limitations set forth in these Terms. Paid Accounts can only be created by an Administrator by paying then-current User license fees and other applicable charges. Any such fees and charges exclude taxes and charges, unless state otherwise. The applicable fees and charges shall be paid in the currency quoted by the Company for the Account.
The Company may charges additional fees to access certain features of the Services or through authorized third party providers, including, without limitation, charges relating to the purchase of the Scentee balloons™ and Scentee devices. Unless otherwise expressly agreed to in writing by the Company, all applicable fees and other charges are payable in advance and are non-refundable unless expressly provided otherwise in these TOS. The Company, in its sole and absolute discretion, may, from time to time, modify, amend, or supplement the User license fee terms and billing methods, and post those changes on the Site, these TOS or elsewhere in the Service. Such modifications, amendments or supplements shall be effective immediately upon posting on the Site, TOS or elsewhere in the Service, as applicable. If any change is unacceptable to you, you may cancel your Account at any time.
In addition to the foregoing, you hereby acknowledge and agree that you shall solely be responsible for and bear all telecommunication expenses, including, telephone charges, Internet connection charges and electricity charges, arising out of your use of the Services.
(c) Billing Methods. Subject to technical problems and revisions to payment policies which may be instituted by the Company at any time without notice, you may pay for any applicable Service fees and other charges by major credit card, PayPal or such other methods expressly authorized in writing by the Company.
When you provide credit card, PayPal or other payment information to the Company, you represent to the Company that you are the authorized user of such credit card that is used to pay the fees and charges applicable to the subject Account. As the Account holder, you are responsible for all fees and charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account. This means that, unless your Account or payment information is obtained unlawfully or fraudulently by someone other than those authorized by you to use your Account, you will be responsible for all usage and purchases on your Account. You agree to keep all billing information current, accurate and complete.
Any dispute arising between you and any third party payment provider (including a credit card company) shall be resolved directly between you and such third party provider. Under no circumstances shall Company be liable for any obligations incurred by you to such third party provider in connection with the use of the Service. You agree to indemnify, defend and hold harmless Company, its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties arising from such dispute.
(d) Termination of Account. You have the right to terminate or cancel your Account at any time. You understand and agree that unless otherwise expressly provided for in these TOS, the cessation of the use of the Service by canceling your Account is your sole right and remedy with respect to any dispute, including, but not limited to, any related to, or arising out of: (i) any term of these TOS or the Company’s enforcement or application of these TOS, (ii) the Company Materials and other content available through the Service, (iii) your ability to access and/or use the Service, Software and Application and/or (iv) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.
You may cancel your Account by delivering an email notice to firstname.lastname@example.org. If applicable, the Company reserves the right to collect accrued and unpaid fees and charges and costs owed by you. The Account cancellation shall become effective upon Company’s receipt of the authorized cancellation request. Company reserves the right to collect accrued fees and charges and costs incurred by Company before Account the cancellation becomes effective. In addition, you are responsible for any fees, charges and costs incurred to third-party vendors or content providers before your cancellation.
If you violate any of these TOS, the Company may issue you a warning about the violation, or we may choose to immediately terminate your Account(s). You acknowledge and agree that the Company may terminate your Account(s) at any time for any reason or no reason in its sole and absolute discretion, including, without limitation, if your Account has been inactive for more than one (1) year.
(e) Refund Policy. All Service fees and/or charges incurred by a User are non-refundable except in the limited circumstances described below and subject to the further limitations set forth below:
(i) If the User who incurred the subject fees and/or charges can prove that the User has been victimized by identity theft. Notwithstanding anything to the contrary, Company may reject your refund request if, in its reasonable judgment, it does not agree with your claim that an identity theft or crime has occurred. All such decisions shall be final and under no circumstance shall Company be obligated to provide any information regarding its decision-making process.
(ii) If you terminate or cancel your Account as a result of Company’s material and verifiable breach of these TOS.
All refund requests are subject to Company’s verification of the identity of the User making the subject request and be made on a pro-rata basis where applicable.
(a) TOS. The Company reserves the exclusive right and may, at any time and without notice or liability to you, modify, amend, or supplement these TOS and post those changes on the Service. Such modifications or supplements shall be effective immediately upon posting in the Service, or by any other method of notice the Company deems appropriate. You are responsible for periodically checking the Service for changes to the TOS. If you do not agree to be bound by (or cannot comply with) the TOS as modified or supplemented, you agree that your sole remedy is to cease using the Service by canceling your Account. Your continued use of the Service constitutes your agreement to be bound by the modified TOS.
(b) Service. The Company reserves the exclusive right and may, at any time and without notice or liability to you, modify, amend, supplement, suspend or discontinue (collectively, “Changes”) the Service, whether temporarily or permanently, in whole or in part. Any such Change shall be effective immediately upon posting in the Service, or by any other method of notice the Company deems appropriate. Any access or use of the Service after such notice of Change, constitutes acceptance by you of such Change. Temporary interruptions in the availability of the Service may occur from time to time as normal events. You agree that neither the Company nor any of its affiliates, licensors, agents, or employees is liable to you or any third party for any modification, amendment, supplement, suspension, or discontinuation of the Service. The Service may include technical inaccuracies, typographical errors or may enable you to access or download harmful or malicious code introduced onto the Internet by third parties. The Service is made available internationally and may contain references to products, programs and services of the Company /or its licensors that are not available in your location. Such references do not imply that the Company or its licensors intend to make available such products, programs or services in your location.
(c) Software. The Company and/or its licensors may deploy or provide patches, updates, upgrades, error corrections, bug-fixes, modifications and additional features or functions to the Software or Application that must be installed for you to continue accessing the Service. The Company and/or its licensors may upgrade or update the Software or Application remotely, including, without limitation, the Software residing on the your Authorized Device, without your knowledge or consent, and you hereby grant to the Company and its licensors your consent to deploy and apply such patches, upgrades, updates, error corrections, bug-fixes and modifications, and additional features or functions to the Software. The Company has no obligation to make available to you any subsequent versions of the Software or Application. You may be required to obtain into a new license in the event you want to download, install and use a new version of the Software or Application.
5. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE, SOFTWARE, APPLICATION AND THE INTERNET IS AT YOUR SOLE RISK. THE SERVICE, SOFTWARE, APPLICATION, THIRD-PARTY SERVICES AND PRODUCTS (IF ANY) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT THE COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
6. LIMITATIONS OF LIABILITIES
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY OR ITS LICENSORS IS TO STOP USING THE SERVICE, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE COMPANY, ITS LICENSORS OR ITS AFFILIATES BE LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICE OR USE OF THE SOFTWARE OR APPLICATION. MOREOVER, IN NO CASE SHALL THE COMPANY’S OR ITS LICENSORS', AFFILIATES’, SHAREHOLDERS’, EMPLOYEES', OFFICERS', DIRECTORS', AGENTS’ (COLLECTIVELY, “COMPANY AFFILIATES”) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO THE COMPANY FOR THE SERVICE. FURTHERMORE, IN NO CASE SHALL THE COMPANY OR ANY COMPANY AFFILIATE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF PROFITS, DATA, USE, GOODWILL, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSS) ARISING FROM YOUR USE OF THE SERVICE, ANY SOFTWARE, APPLICATION, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO SUCH USE, WHETHER BASED ON WARRANTY, PRODUCT LIABILITY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THE COMPANY OR ANY COMPANY AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, THE COMPANY’S AND COMPANY AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY SERVICE OR PRODUCT (IF ANY) OFFERED THROUGH THE SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
7. LINKS WITH OTHER SITES
The Service may provide certain links to websites provided by third parties. The Company is not responsible for the content of any other site or services linked to or from the Service. If you link to another site or service, you leave the Service and you do so entirely at your own risk. The Company provides links from the Service to other sites and services solely as a convenience to you and in no way should this be interpreted as a referral or endorsement of any content, sponsor or owner of any other site or service. THE COMPANY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED AS TO ANY SUCH LINKED SITE OR SERVICE, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, OWNERSHIP, VALIDITY OR LEGALITY OF ANY CONTENT OF A LINKED SITE OR SERVICE.
9. GOVERNING LAW
The Site and Service is operated and controlled from Scentee, Inc. in the State of California, U.S.A. It can be accessed from various countries of the world. The laws of the State of California, without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Service and your connection to and use of the Service. By accessing or using the Service, you submit and consent to the exclusive jurisdiction of state and federal courts located in the State of California with respect to any dispute or cause of action arising out of or in connection with these TOS and/or your use of the Service, including, any Software or Application. The parties specifically exclude the application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act.
10. INJUNCTIVE RELIEF
You acknowledge that the rights granted and obligations made hereunder to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone so that the Company shall be entitled to injunctive or other equitably relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any).
11. VOID WHERE PROHIBITED
The information provided through the Service is not intended for distribution to or use by any person in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Company to any registration requirement within such jurisdiction or country. The Company makes no representation or warranty that any material on the Service, Software or Application is lawful in every jurisdiction from which such content can be accessed, or is available for use in all jurisdictions. If you access or use the Service, the Software or Application from a jurisdiction outside the State of California you are responsible for compliance with all applicable local rules, laws and regulations. THE SERVICE IS INTENDED FOR USE BY PERSONS OVER THE AGE OF 13. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE 13 OR OLDER, AND THAT YOU AGREE TO AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THESE TOS.
12. COMPLAINTS, NOTICE AND CONTACT INFORMATION
The Company takes claims of infringement of intellectual property rights and violation of rights of privacy or publicity very seriously. If you believe that any of the material that is or was in our Service infringes or has infringed any rights, including copyrights or trademarks, owned by you, or by an owner for which you are authorized to act, please contact us at email@example.com.
In the event you become aware of any authorized use of any Account, the Service, Software or Application, you must immediately notify use. Moreover, you agree to take all reasonable steps necessary to terminate such unauthorized use, and cooperate with and assist us, in connection with our efforts to terminate such unauthorized use, as we may reasonably request.
You may provide legal notices to us via email to firstname.lastname@example.org with a duplicate copy via registered mail to, return receipt requested, to the following address: Scentee, Inc., Attn: Legal Department –12F Fuji-soft-akihabara Building 3 Kanda-neribeicho, Chiyoda-ku Tokyo,101-0022
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If you have any questions, complaints, or comments regarding these TOS, or have other questions or suggestions about our Service, Software or Application, please contact us via e-mail at email@example.com
© 2013 Scentee, Inc. All rights reserved.