Terms of Service
Last Updated - 12/1/2016
Bitfinder, Inc. and its affiliates, if any, (collectively referred to as “Bitfinder”, “we,” “us, “ “our”) manufactures, markets and sells the Awair consumer electronics products and other products made from Bitfinder (the “Product”) as well as providing B2B technology solutions. Bitfinder additionally provides services including, but not limited to: (1) a website located at www.getawair.com (the “Site”), (2) software that may be downloaded to your smartphone or tablet (“Mobile App”) which may be updated or altered from time to time, (3) an application program interface (the “API”), (4) various types of content with analytics, suggestions or information relating to your use of other Bitfinder services (“Content”) that may be delivered over e- mail or through the Mobile App, and (4) Bitfinder user accounts (“Accounts”) that may be accessed through the Mobile Apps. The term “Services” refers collectively to the Site, Mobile App, API, User Account, and other services offered by Bitfinder, Inc. in connection therewith.
THIS IS A LEGAL AGREEMENT. By accessing or using any of the Services, (1) you agree to be bound by all terms and conditions provided by Bitfinder, which includes this Terms of Service (“Agreement”) and any additional terms incorporated by reference (“Additional Terms”) (collectively, the “Terms”), on behalf of yourself or the entity you represent; (2) you represent and warrant that you have the right, authority and capacity to accept and agree to these terms on behalf of yourself or the entity you represent; and (4) you represent that you are of sufficient legal age in your jurisdiction or residence to use or access the services and enter into this agreement.
I. Overview, Eligibility, Terms and Termination
a. Overview and Relation to Other Agreements.
These Terms govern your use of the Services. Certain features of the Services may be subject to additional guidelines, terms, or rules which will be posted in connection with such features. All additional guidelines, terms, or rules (“Additional Terms”), are incorporated by reference into these Terms, and you are agreeing to accept and abide by them by using the Services, including:
You may use the Services only if you can form a binding contract with Bitfinder, and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. Any use or access to the Services by anyone under the age of 18 is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by Bitfinder.
c. Term and Termination.
These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Bitfinder may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Bitfinder in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules.
II. User Accounts
a. User Account.
To use certain Services, you must register for an Account and provide certain information about yourself. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify Bitfinder of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Bitfinder is not liable for any loss or damage arising from your failure to comply with the above requirements.
III. Access to Services
a. Access and Use.
Subject to these Terms, Bitfinder grants you a limited, non-transferable, non-exclusive, revocable, license (without the right to sublicense) to access and use the Services provided by Bitfinder. [----]
b. Automatic Software Updates.
Bitfinder may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve or alter the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the application and delete the software from your device. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any Updates Bitfinder provides. Your continued use of the Services and the Product is your agreement to these Terms with respect to the Services.
c. Certain Restrictions.
The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Bitfinder; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
Bitfinder cares about the integrity and security of your personal information. However, Bitfinder cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Bitfinder reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Bitfinder will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
g. Access Outside Certain Countries.
Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites from outside a country in which Bitfinder supports the Product and Services listed here ("Target Country"), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use in a non-Target Country and some or all of the features of the Sites may not work or be appropriate for use in such a country. To the extent permissible by law, Bitfinder accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Sites or Bitfinder Products in a non-Target Country. You will be bound by these Terms wherever you access or use the Sites or use the Services.
IV. Agreed Usage and Limitations Of Bitfinder Services
a. Intended Use of Bitfinder Services.
The Services are intended to be accessed and used for non-time-critical information and control of Bitfinder products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Bitfinder’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Bitfinder is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.
b. No Life-Safety or Critical Uses of the Services.
You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. Bitfinder makes no warranty or representation that use of the Products or Services, including integration with any third-party product or service, will affect or increase any level of safety. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM -- BITFINDER WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, the Bitfinder customer support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
c. Reliability of Notifications.
You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR BITFINDER PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. The information provided by Bitfinder on what to do in an emergency is based on authoritative safety sources, but there is no way for Bitfinder to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
d. Temporary Suspension.
The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Bitfinder does not offer any specific uptime guarantee for the Services.
e. System Requirements.
Access to Services are limited to those with the necessary system requirements, as published in connection with such Services. Certain Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required from some functionality); (iv) always-on broadband Internet access in your home; and (v) other system elements that may be specified by Bitfinder. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that Bitfinder may activate Bluetooth on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with Bitfinder Products connected to the same Bitfinder account, and enable certain features.
f. Quality Assurance.
Bitfinder is dedicated to the highest quality products. When consumers purchase a Bitfinder product new, they expect that the product comes directly from Bitfinder or its authorized distributors and the quality controls in that sales channel. You agree not sell any Bitfinder product as new and without prominent marking as a “USED” product unless you are an authorized distributor or you have passed Bitfinder’s reseller certification program to ensure quality control. To become a certified reseller, please e-mail Bitfinder at firstname.lastname@example.org.
g. Air Quality, Health and other Benefits.
Unless explicitly promising a “guarantee,” Bitfinder does not guarantee or promise any specific level of air cleanliness or any health benefits from the use of the Products or Services or any feature of them, including following any guidance provided by the Services. Actual air quality may vary with factors beyond Bitfinder’s control or knowledge. From time to time, Bitfinder may use the Services to provide you with information that is unique to you and your air monitoring situation and may suggest ways to enhance or improve or otherwise alter your habits. We do this to highlight options for your consideration based on our analysis and information that has been monitored and collected. YOU ACKNOLWEDGE THAT THESE SUGGESTIONS ARE NOT CONSIDERED MEDICAL ADVICE AND THE EFFICIACY AND APPLICABILITY OF SUCH SUGGESTIONS MAY VARY. Bitfinder, to the extent permissible by law, accepts no liability regarding your actions based on the information provided by the Services, and makes no warranties and representation about the applicability of such information or guidance to your specific needs. Any health questions regarding the information and guidance provided should be directed to a medical doctor.
h. Product Information.
The Services may, from time to time, provide you information (“Product Information”) regarding third-party products and their connection Products provided by Bitfinder and with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information in the home.
i. Access to Content.
You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
V. Payment and Sales term
Purchases made on the Store are intended for end users only, and are not authorized for resale.
b. Sales Tax.
Depending on the order, Nest calculates and charges sales tax in accordance with applicable laws.
c. International Sales.
For the sales outside of US, you are responsible for any VAT, tariff, duty, taxes, handling fees, brokerage charges, customs clearance charges, etc. required by your country for importing consumer goods.
VI. Limitations of Bitfinder Services Due to Third Parties
In certain circumstances, Bitfinder Services may rely on or interoperate with third party products and services. These third party products and services are beyond Bitfinder’s control, but their operation may impact or be impacted by the use and reliability of the Bitfinder Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Bitfinder Services operate, and (iii) Bitfinder is not responsible for damages and losses due to the operation of these third party products and services.
b. Third Party Service Providers Used By Bitfinder.
You acknowledge that Bitfinder uses third party service providers to enable some aspects of the Services. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES.
c. Equipment, ISP, and Carrier.
d. Third Party Products and Services that Work With Bitfinder Services.
Bitfinder may provide the opportunity for you to interface to, integrate with or control Third Party Products and Services, for example through the Bitfinder Mobile App or API. Although the Mobile App and Bitfinder API is offered by Bitfinder, you acknowledge that Third Party Products and Services that you connect to your account or interface with are not Bitfinder products and services and you acknowledge and agree that Bitfinder does not control, and that these Terms do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. You acknowledge and agree that Bitfinder makes no representation or warranty about the safety of any Third Party Products or Services. Accordingly, Bitfinder is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the Third Party with any questions about their Products and Services.
e. App Stores.
You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Bitfinder and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
f. Third Party Website Links, Information and Referrals.
The Sites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Bitfinder provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites is at your own risk.
g. Release Regarding Third Parties.
Bitfinder is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. Bitfinder hereby disclaims and you hereby discharge, waive and release Bitfinder and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
VII. Ownership and Intellectual Property
a. Bitfinder Property.
You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product and Services (i.e., the Site, Mobile App, API, etc.) are owned by Bitfinder or its affiliates or our licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. Bitfinder and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
b. Use Limitation.
You may only copy parts of the Services (including this Site) on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of Bitfinder. You must have a license from us before you can post or redistribute any portion of the Services. Bitfinder retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
You may choose to, or Bitfinder may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Bitfinder under any fiduciary or other obligation. Bitfinder may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Bitfinder does not waive any rights to use similar or related ideas previously known to Bitfinder, developed by its employees, or obtained from other sources.
You agree to defend, indemnify and hold Bitfinder and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to or arising out of (i) your use of the Products or Services, (ii) your violation of these Terms, (iii) any User Submissions or Feedback you provide; or (iv) your violation of any law or the rights of any third party. Bitfinder reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Bitfinder and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Bitfinder’s prior written consent. Bitfinder will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
IX. Warranty Disclaimers
a. THE WARRANTY FOR THE PRODUCT IS SET FORTH IN THE LIMITED WARRANTY.
b. THE SERVICES (I.E., THE SITE, MOBILE APP, API, ETC.) ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND BITFINDER AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON- INFRINGEMENT.
c. BITFINDER AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BITFINDER OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
d. BITFINDER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED, INTEGRATED WITH OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH BITFINDER MOBILE APP) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND BITFINDER WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
e. WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY BITFINDER YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
f. BITFINDER MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND BITFINDER WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. BITFINDER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
X. Limitation of Liability
a. Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) BITFINDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF BITFINDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) BITFINDER’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO BITFINDER OR BITFINDER’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. BITFINDER DISCLAIMS ALL LIABILITY OF ANY KIND OF BITFINDER’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL BITFINDER BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
XI. Fees and Payment
a. Certain Services may be offered for a fee.You shall pay all applicable fees in connection with the Services selected by you in accordance with the any terms of sale stipulated.
XII. Disputes and Arbitration
a. Contact Bitfinder First.
If a dispute arises between you and Bitfinder, our goal is to learn about and address your concerns. You agree that you will notify Bitfinder about any dispute you have with Bitfinder regarding these Terms or our Products or Services by contacting Bitfinder.
b. Equipment, ISP, and Carrier.
You and Bitfinder agree, subject to the Protection of Confidentiality and Intellectual Property Rights clause of these Terms, to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Service. Subject to the Protection of Confidentiality and Intellectual Property Rights clause of these Terms, any dispute or claim made by you against us or us against you arising out of or relating to these Terms or your use of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.
c. Arbitration Procedures.
You must first present any claim or dispute to us by contacting Bitfinder to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Bitfinder. Bitfinder may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with the Notifications section of these Terms. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by this agreement. The place of any arbitration will be Palo Alto, California, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential damages or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Bitfinder nor the arbitrator may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
d. No Class Actions.
There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
e. Fees and Expenses.
All administrative fees and expenses of arbitration will be divided equally between you and Bitfinder. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
YOU MUST CONTACT BITFINDER WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
a. Changes to these Terms.
Bitfinder reserves the right to make changes to these Terms. We'll post notice of modifications to these Terms on this page. You should ensure that you have read and agree with our most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms.
b. Governing Law.
The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country's laws will apply to such disputes related to these terms. Otherwise, you agree that these Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Santa Clara County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
c. Protection of Confidentiality and Intellectual Property Rights.
Notwithstanding the foregoing, Bitfinder may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
d. Entire Agreement/Severability.
These Terms constitute the entire agreement between you and Bitfinder regarding the use of the Services. Any failure by Bitfinder to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Bitfinder’s prior written consent. These Terms may be assigned by Bitfinder without restriction. These Terms are binding upon any permitted assignee.
Bitfinder may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on www.Bitfinder.com. Bitfinder is not responsible for any automatic filtering you or your network provider may apply to email notifications. Bitfinder recommends that you add @getawair.com email addresses to your email address book to help ensure you receive email notifications from Bitfinder.
If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
i. Copyright/Trademark Information.
Copyright © 2015, Bitfinder Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of Bitfinder or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Bitfinder or such respective holders. Bitfinder reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.