Curie Terms of Service

24-September 2019

Curie Terms of Service

Last Updated: [insert date]

This Terms of Service (the "Agreement") is a binding agreement between you ("you") and CurieVision, Inc. ("Curie"). This Agreement governs your use of the mobile application provided by Curie and on which a link to this Agreement is displayed (including all related documentation, the "Application").

BY DOWNLOADING, INSTALLING, OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

This Agreement provides that all disputes between you and Curie will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this Agreement, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review the "Dispute Resolution and Arbitration" section below for the details regarding your agreement to arbitrate any disputes with Curie.

  1. License Grant. Subject to the terms and conditions of this Agreement, Curie grants you a limited, non-exclusive, and nontransferable license to download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with this Agreement and the Application’s documentation.

  2. License Restrictions. You shall not:

    (a) copy the Application, except as expressly permitted by this license;

    (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

    (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

    (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

    (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or

    (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.

  3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. All rights in the Application not expressly granted under this Agreement are reserved by Curie and its licensors and service providers. Curie and its licensors and service providers retain all right, title, and interest in and to the Application and all copyrights, trademarks, patents, and other intellectual property rights therein or relating thereto.

  4. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Curie may use automatic means to collect information or data about your Mobile Device and about your use of the Application. All information and data Curie collects through or in connection with this Application is subject to Curie’s Privacy Policy. By downloading, installing, using, or providing information or data to or through this Application, you consent to all actions taken by us with respect to your information or data in compliance with the Privacy Policy: https://curie.co/privacy-policy.

  5. Updates. Curie may, from time to time, in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete, in their entirety, certain features and functionality. You agree that Curie has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the Internet, either of the following may occur:

    (a) the Application will automatically download and install all available Updates; or

    (b) you may receive notice of or be prompted to download and install available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate if you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

  1. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Curie is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Curie does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third party’s terms and conditions.

  2. Term and Termination. (a) The term of this Agreement commences when you download, install or use the Application (whichever occurs first) and will continue in effect until terminated by you or Curie as set forth in this Section 7.

    (b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.

    (c) Curie may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

    (d) Upon termination:

     (i) all rights granted to you under this Agreement will also terminate; and
    
     (ii) you shall cease all use of the Application and delete all copies of the Application from your Mobile Device.

    (e) Termination will not limit any of Curie’s rights or remedies at law or in equity.

  3. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO YOU "AS IS" WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CURIE, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, CURIE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  4. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CURIE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, OR ANY OTHER INTANGIBLE LOSS), ARISING OUT OF OR RELATED TO ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE APPLICATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CURIE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE AGGREGATE LIABILITY OF CURIE AND ITS AFFILIATES, AND ANY OF ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE APPLICATION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. THE PURPOSE OF EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT WILL APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

  5. Indemnification. You agree to indemnify, defend (at Curie’s option), and hold harmless Curie and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, demands, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising out of or related to your use or misuse of the Application or your breach of this Agreement.

  6. Export Regulation. The Application may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the United States.

  7. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule or to the United Nations Convention on Contracts for the International Sale of Goods. If a legal suit, action, or proceeding is permitted under this Agreement, you and Curie shall submit to the personal and exclusive jurisdiction of the state and federal courts located in King County, Washington. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

  8. Dispute Resolution and Arbitration

    (a) Generally. In the interest of resolving disputes between you and Curie in the most expedient and cost-effective manner, you and Curie agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CURIE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    (b) Exceptions. Despite the provisions of Section 13(a), you and Curie agree that nothing in this Agreement will be deemed to waive, preclude, or otherwise limit your or Curie’s right to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement or misappropriation claim.

    (c) Arbitrator. Any arbitration between you and Curie will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Curie.

    (d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if Curie does not have a physical address on file for you, by electronic mail ("Notice"). Curie’s address for Notice is: CurieVision, Inc., 3932B S. Brandon St., Seattle, WA 98118. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). You and Curie agree to use good faith efforts to resolve the claim directly, but if you and Curie do not reach an agreement to do so within 30 days of the receipt of the Notice, you or Curie may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Curie must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Curie will pay you the highest of the following: (x) the amount awarded by the arbitrator, if any; (y) the last written settlement amount offered by Curie in settlement of the dispute prior to the arbitrator’s award; or (z) $1,000.

    (e) Fees. If you commence arbitration in accordance with this Agreement, Curie will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in King County, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Curie for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

    (f) No Class Actions. YOU AND CURIE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Curie agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

    (g) Modifications. If Curie makes any change to this Section 13 in the future (other than a change to Curie’s address for Notice) and you wish to reject the change, you must do so by: (i) sending Curie written notice within 30 days of the change to Curie’s address for Notice; and (ii) ceasing all use of the Application and deleting all copies of the Application from your Mobile Device. This Section 13, as in effect immediately prior to the amendments you reject, will survive.

    (h) Enforceability. If Section 13(f) is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 12 will govern any action arising out of or related to this Agreement.

  9. Modification of this Agreement. Curie reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Application. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.

  10. Entire Agreement. This Agreement and Curie’s Privacy Policy constitute the entire agreement between you and Curie with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application. Except as expressly permitted above, this Agreement may only be amended by a written agreement signed by an authorized representative of each party to this Agreement.

  11. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.

  12. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

  13. Assignment. You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice or consent.

  14. Relationship. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

  15. Headings. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision.

  16. Survival. Upon expiration or any termination of this Agreement, Sections 2, 3, 4, 6, 7(d), 7(e), and 8 - 21 will survive.

  17. Contact Information and Consumer Rights Notice. This Application is offered by CurieVision, Inc., located at 3932B S. Brandon St., Seattle, WA 98118. You may contact Curie by sending correspondence to that address or by emailing us at info@curie.co. If you are a California resident, you may have this Agreement e-mailed to you by sending a letter to the address above with your e-mail address and a request for this Agreement. California users are also 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., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.