CONSUMER DISCLOSURE AND CONSENT
TO ELECTRONIC COMMUNICATIONS
1. Disclosure. Federal law (the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001-7031) permits you to agree to the receipt and access of certain documents and communications in electronic form, notwithstanding any requirement for written copies. Pursuant to this Consumer Disclosure and Consent to Electronic Communications you consent to receive and to be provided with electronic copies of all documents and communications as defined below. Please save or print a copy of this document for your records.
2. Consent to Electronic Delivery. You agree to receive all documents and communications including but not limited to agreements, terms and conditions, bills for services, statutory notices, correspondence and disclosures required by law to be in writing, (“Documents and Communications”) from Topaz Capital Ventures, LLC (hereinafter referred to as “Provider” or “Company”) in an electronic format, (“Electronic Communications”).You acknowledge that you are able to receive and retain such Electronic Communications by printing, downloading or saving them to your electronic device. You accept any Electronic Communications provided by Provider as reasonable and proper notice in full satisfaction of any law or regulation requiring that such Documents and Communications be provided to you in writing, or in a form that you have the ability to retain. You agree that you are solely responsible for notifying Provider of any changes to your email address, and agree to keep it up to date by writing to Provider at Topaz Capital Ventures, LLC, P.O. Box 22700, San Diego, CA 92122.
3. Paper Copies of Electronic Communications. You agree that Provider does not need to provide you with additional paper (non-electronic) copies of any Electronic Communications unless you specifically request to receive paper copies. You may request a paper copy of any Electronic Communications provided by Provider. You acknowledge Provider reserves the right to charge you a reasonable fee for the production and mailing of any paper copy of Electronic Communications. To submit a request to receive a paper copy of all Electronic Communications contact Provider by mail at: Topaz Capital Ventures, LLC, P.O. Box 22700, San Diego, CA 92122.
4. Revocation of Consent to Electronic Communications. You have the right to withdraw your consent to receive Electronic Communications from Provider at any time. You acknowledge that Provider reserves the right to restrict or terminate your access to its website, web portal, web application, mobile application, data services and artificial intelligence systems if you withdraw your consent to receive Electronic Communications. To withdraw your consent to receive Electronic Communications contact Provider by mail at: Topaz Capital Ventures, LLC, P.O. Box 22700, San Diego, CA 92122.
5. Right to Modify Terms. Provider reserves the right, in its sole discretion, to modify the terms and conditions of this Consumer Disclosure and Consent to Electronic Signatures and Communications. If required by law Provider shall notify you of any modification to the Consumer Disclosure and Consent to Electronic Communications or the termination of its relationship with you.
Obtain Documents and Communications from Provider electronically and indicate your consent to the above terms and conditions by logging into the AICES or Photofetcher or other AICES Service and selecting that you have read and agreed to these terms on the user interface and by doing so you are marking the “I Accept” checkbox below.
☐ “I hereby accept the terms and conditions as outlined in the above agreement and understand that by confirming I am submitting my electronic consent to receive all document(s) and communication(s) electronically.”
AUTONOMOUS PHOTO CURATION
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE CLICKING “I ACCEPT”.
BY LOGGING INTO THE SERVICE PROVDER APP AICES or PHOTOFETCHER OR OTHER VERSION OF AICES SERVICES I AM MARKING “I ACCEPT” ICON , YOU AFFIRMATIVELY AGREE TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS, INCLUDING THE AUTO-RENEWAL PROVISION.
1.0 SCOPE OF SERVICE PROVIDED. Provider provides autonomous photo curation services through the use of an artificial intelligence system known as AICES to emulate the User’s visual perspective in future photo analysis and curation tasks, (“Service”).
2.0 GRANT OF LICENSE. Provider grants to User a temporary, non-exclusive license to use the Service for the Term, and on the terms and conditions set forth in this Agreement, (“License”).
2.01 Limitations on License. User shall not sublicense, assign, or transfer the License. Any attempt by User to sublicense, assign or transfer the License shall be null and void.
2.02 Termination of License. The License is effective until terminated by Provider or User. Notice of termination of License shall be provided in accordance with this Agreement.
3.0 BETA TESTING. User understands, acknowledges, and agrees that: (a) it is participating in Provider’s beta testing for the pre-release application of the Service and photo data may be used to improve the Service; (b) it is receiving a preliminary version of the Service; (c) it will create data that will be used to improve the Service; (d) User will not disclose or discuss the Service, app or program or any part, view, screen, image or graphic describing the Service with anyone that is not part of the AICES team (d) the Service may not (i) operate properly, (ii) perform all functions for which it is intended or represented, or (iii) operate accurately or error-free. User agrees to provide Provider with its comments, criticisms, and suggestions for changes with respect to the Service, and agrees to assist Provider in identifying any and all errors or malfunctions in the operation of the Service.
4.0 CONSENT TO ACCESS TO USER INFORMATION. User understands and acknowledges that as part of the Service: (a) User will provide certain personal information, data, and feedback to Provider (collectively “User Information”); (b) Provider will access User’s device to upload copies of User’s photographs, (“User Photographs”); and (c) Provider will be using computer vision technology and other artificial intelligence to autonomously analyze and curate User’s Photographs in connection with User’s Information. User consents to Provider’s access to, and the uploading and analysis of, User’s photographs and User’s Information as provided herein.
5.0 ASSUMPTION OF RISK. Although not anticipated, User understands that anytime original data files on User’s device are accessed in connection with the Service, there is a risk that said files may be damaged, corrupted, lost, destroyed or otherwise rendered unusable, (“Risk of Loss”). User, by engaging in the use of the Service, knowingly and voluntarily assumes Risk of Loss and shall not hold Provider liable for such Risk of Loss should it occur.
7.0 OWNERSHIP OF SERVICE AND RELATED INFORMATION. The Service and all files, documents, data, information, and intellectual property, related thereto, as well as all content included in any related website, including but not limited to trade names, trademarks, images, colors, logos, graphical elements and accents, style sheets, menus and navigation tools, product depictions, drawings, and diagrams, and technological or resource data, descriptions, documentation, coding, files, and other information concerning the Service, (collectively “Service Content and Information”) is and shall remain the property of Provider, its parent companies, and/or subsidiaries, and is protected by all applicable international, federal, state, and local copyright, patent, trademark, and other proprietary laws. Any reproduction, reprogramming, redistribution, republication, diversion, transmission or other unauthorized use of Service Content and Information, or any part thereof, without the express written consent of Provider is strictly prohibited.
8.0 ASSIGNMENT AND SUBCONTRACTING BY PROVIDER. Provider reserves the right to assign or subcontract its rights and obligations owing under this Agreement after notice to User. On and after the effective date of any such assignment or subcontract, Provider shall be relieved of all obligations under this Agreement.
9.0 USER REPRESENTATIONS AND WARRANTIES. User represents and warrants that: (a) User is age 18 or older; (b) User is authorized to enter into this Agreement; (c) by entering into this Agreement and using the Services, User will not cause the breach of any covenant, agreement or obligation to which User is a party, and will not otherwise violate any law or infringe on any copyright or other intellectual property right of any third party, (“User’s Representations and Warranties”). Without limiting the generality of the foregoing, Provider is not responsible for, and expressly disclaims any and all liability arising out of, or in any way connected with any copyrighted images that may be on User’s device, (“Copyright Liability”). User knowingly and voluntarily assumes sole responsibility for any and all Copyright Liability
10.0 USER RESPONSIBILITIES. User shall have the following responsibilities (collectively “User Responsibilities”) at all times during the term of this Agreement:
10.01 Installation and Activation of Service. User is responsible for activating the Service with Provider, and thereafter maintaining connectivity with Provider as Provider may require.
10.02 Accuracy of User Information. The accuracy of the information provided by User in during the onboarding and set up processes (“User Information”) is critical to the delivery and performance of the Service. User is responsible for maintaining the accuracy of all User Information. Any updates to User Information must be provided to Provider by timely updating User’s Account Settings. Failure to provide accurate user information could delay or prevent service.
10.03 Maintenance of Personal Device. User, at its own cost, is responsible for maintaining User’s Personal Device, equipment or other applicable hardware, including all electrical, battery, or other power systems, in good working order. User is responsible User for ensuring and maintaining the compatibility of User’s Personal Device with the Service, including ensuring that the operating system, security settings, changes made by cellular telephone providers, or other software programs on User’s Personal Device do not conflict with or otherwise cause the Service not to operate or perform as designed.
10.04 Connectivity of Personal Device. User, at its own cost, is responsible for securing and maintaining connectivity between User’s Personal Device and any and all applicable cellular telephone, internet, VoIP or other communications lines, ports, pathways, connections and/or services, (“Connectivity”). User is responsible for any data usage expense incurred by User in connection with the Service.
11.0 USER DEFAULT; PROVIDER REMEDIES. If User breaches any representation, warranty, or covenant, fails to duly and timely perform any obligation, or satisfy any condition owing under this Agreement, including without limitation any breach of User’s Representations and Warranties, User’s Responsibilities, User shall be deemed to be in default, the License shall terminate with Provider retaining all rights and remedies at law and in equity.
12.0 INDEMNITY. Provider shall not be liable to User for any loss, damage, claim or expense arising out of User’s breach of any User Representation and Warranty or User’s failure to perform or satisfy User Responsibilities. User shall defend, indemnify, and hold Provider, its parent companies, subsidiaries, officers, directors, shareholders, employees, agents, attorneys, insurers, vendors, suppliers, independent contractors, and all other persons, firms or entities acting on its behalf, from any and all liability, loss, damage, and expense, including reasonable attorney’s fees, resulting from, or in any way connected with User’s breach of any representation, warranty, covenant or obligation owing under this Agreement, including without limitation any breach of User’s Representations and Warranties and/or User’s Responsibilities.
13.0 DISCLAIMER OF WARRANTIES. PROVIDER DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY EXPRESS WARRANTY, STATUTORY WARRANTY OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
14.0 DISCLAIMER OF CERTAIN LIABILITIES. The Service is not designed to prevent, detect or deter any illegal or illicit activity or content in User Photographs or otherwise. Provider does not condone or intend to traffic in any such activity or content; however Provider assumes no liability arising out of any such activity or conduct, including without limitation any obligation to report any such activity or conduct to any person, firm or authority.
15.0 LIMITATION OF LIABILITY; USER REMEDIES. UNDER NO CIRCUMSTANCES WILL PROVIDER, ITS PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS, INSURERS, INDEPENDENT CONTRACTORS AND ANY OTHER PERSON FIRM OR ENTITY ACTING ON ITS BEHALF, BE LIABLE OR RESPONSIBLE IN ANY MANNER FOR ANY DIRECT, INDIRECT, INCIDENTIAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING DAMAGES TO REPUTATION OR LOSS OR INVASION OF PRIVACY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICE OR THE USE THEREOF, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY; HOWEVER, IN NO CASE SHALL PROVIDER’S LIABILITY EXCEED A REFUND OF THE COST OF THE SERVICE OR THE SUM OF $250.00, WHICHEVER IS GREATER.
16.0 FORCE MAJEURE. Provider assumes no liability for failure to perform because of labor disputes, terrorism, riots, civil unrest, fire, floods, acts of God, or any catastrophe or condition beyond its control, and is not required to provide Service while any such condition exists.
17.0 DISPUTE RESOLUTION.
17.01 Agreement for Binding Arbitration. Arbitration under this Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). This Agreement applies to User and Provider, and their respective heirs, assigns, spouses, family members, affiliates, officers, directors, attorneys, insurers, shareholders, successors, subsidiaries and/or parent companies, and survives the termination of Service. SUBJECT TO USER’S RIGHT TO BRING ANY CLAIM AGAINST PROVIDER IN A SMALL CLAIMS COURT OF COMPETENT JURISDICTION USER AND PROVIDER AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF THIS AGREEMENT, THE USE OF THE RESCUE APP, OR THE SERVICE, INCLUDING ISSUES OF ARBITRABILITY, SHALL, (“DISPUTE”), AT THE OPTION OF EITHER PARTY, BE RESOLVED BY BINDING ARBITRATION BEFORE A SINGLE NEUTRAL ARBITRATOR ADMINISTERED BY JUDICIAL ARBITRATION AND MEDIATION SERVICES (“JAMS”) UNDER ITS APPLICABLE ARBITRATION RULES IN EFFECT AT THE TIME THE DISPUTE ARISES. DISPUTES SHALL NOT BE RESOLVED BY COURT OR JURY TRIAL, AND USER IS WAIVING ANY RIGHT TO A COURT OR JURY TRIAL. The JAMS Policy on Consumer Arbitration and Minimum Standards of Procedural Fairness in effect at the time the Dispute arises are deemed incorporated by reference herein, and shall govern the Arbitration.
The JAMS Rules and may be found at www.jamsadr.com, by searching for “JAMS Arbitration Rules” using a service such as www.Google.com or www.Yahoo.com, or by asking Provider for a copy of the rules. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator.
The Arbitration hearing shall, unless the Parties otherwise agree in writing, be held within 45 miles of where User resides. Provider shall pay all costs and expenses unique to arbitration, including without limitation the arbitrator’s fees. The Parties shall be entitled to discovery as provided by the Federal Rules of Civil Procedure. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction.
Either User or Provider may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief.
17.02 Class, Collective, and Representative Action Waiver. This Agreement affects your ability to participate in class, collective or representative actions. User and Provider agree to bring any Dispute in Arbitration on an individual basis only, and not on a class, collective, or private attorney general representative basis. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class, collective, representative, or private attorney general action, or as a member in any purported class, collective, representative, or private attorney general proceeding (“Class Action Waiver”). Notwithstanding any other provision of this Agreement or the JAMS Rules, disputes regarding the validity, enforceability, or breach of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, representative, or private attorney general action and (2) a civil court of competent jurisdiction finds all or part of the Class Action Waiver unenforceable, the class, collective, representative, and/or private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. The Class Action Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
17.03 Commencing the Arbitration. All claims in arbitration are subject to the same statues of limitations that would apply in court under applicable law. The Party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration shall be provided to Provider’s registered agent for service of process. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
17.04 Enforcement of this Agreement. This Agreement is the full and complete agreement relating to the formal resolution of disputes covered by this Agreement, and shall supersede any and all other agreements concerning arbitration. In the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable. If the Class Action Waiver in subsection 2 of this Agreement is deemed to be unenforceable, Provider and User agree that this Agreement is otherwise silent as to any Party’s ability to bring a class, collective, or representative action in arbitration
18.0 ENTIRE AGREEMENT; SEVERABILITY. This Agreement constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof, and all prior or contemporaneous agreements, representations or understandings by and between the Parties, whether written or oral, are superseded and merged herein. User acknowledges and represents that User has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other assurance, except those set forth in this Agreement. User hereby waives all rights and remedies, at law or in equity, arising, or which may arise, as the result of User’s reliance on such representation, assertion, guarantee, warranty, collateral agreement or other assurance. To the extent this Agreement is inconsistent with any other document or agreement, whether executed prior to, or concurrently with this Agreement, the terms of this Agreement shall govern. Should any provision of this Agreement be declared by any court of competent jurisdiction to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected thereby, and said illegal and/or invalid part, term, or provision shall be deemed not to be a part of the Agreement.
19.0 MODIFICATION; WAIVER. No supplement, amendment or modification of this Agreement shall be valid or binding unless in writing and executed by an authorized officer of Alarm Relay, Inc. Provider shall not be deemed to have waived any provision in this Agreement, unless specifically agreed to in writing and signed authorized officer of Alarm Relay, Inc. No waiver of any provision of this Agreement shall be deemed to constitute a continuing waiver of that provision, nor shall it be deemed to constitute a waiver of any other provision.
20.0 TERM AND TERMINATION. This Agreement shall continue until terminated by User or Provider as provided herein, (“Term”). Either Party may terminate this Agreement at any time and for any reason by providing Notice to the other in accordance with this Agreement.
21.0 NOTICE. All notices, requests, demands and other communications required to be provided to Provider under this Agreement shall be in writing and shall be delivered to Provider by United States mail, first class, postage pre-paid, at P.O. Box 22700, San Diego, CA 92122. Any such Notice shall be deemed to have been duly made on the third day after mailing. User agrees to accept all notices requests, demands and other communications under this Agreement in accordance with the CONSUMER DISCLOSURE AND CONSENT TO ELECTRONIC COMMUNICATIONS contained herein, unless User has otherwise duly opted out thereof.
You are indicating your consent to the above terms and conditions by logging into the AICES or Photofetcher or other AICES Service and selecting that you have read and agreed to these terms on the user interface and by doing so you are marking the “I Accept” checkbox below.
☐ “I hereby accept the terms and conditions as outlined in the above agreement and understand that by confirming I am submitting my electronic consent to these terms.
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