THESE TERMS AND CONDITIONS (THIS “Agreement“) CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND Wristcam, INC. (“Wristcam“, “we“, “us” and “our“), AND BY USING Wristcam AND/OR THE APP (OR OTHERWISE DOWNLOADING IT), AS EACH OF THOSE TERMS ARE DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date“):

1. THIS AGREEMENT, AND
2. OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE HEREBY INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.

 IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE Wristcam OR THE APP (AND DO NOT DOWNLOAD THE APP). SUBJECT TO THE THEN-CURRENT LIMITED WARRANTY POLICY AVAILABLE AT Wristcam.com (the “Warranty Policy“) AND THE THEN-CURRENT RETURNS AND REFUNDS POLICY AVAILABLE AT Wristcam.com (the “Refund Policy“), YOU MAY BE ABLE TO RECEIVE WARRANTY SERVICES AND/OR RETURN Wristcam AND OBTAIN A REFUND.

By entering into the Agreement you hereby waive (to the extent legally permitted) any Law applicable to you requiring that the Agreement be localized to meet your language, as well as any other local requirements.

Wristcam reserves the right to make changes to this Agreement at any time by posting the changed Agreement at Wristcam.com. Such changes will be effective ten (10) days after such posting, and your continued use of Wristcam or App means that you agree to be bound by the changes. Please check the above webpage regularly for any changes.

At Wristcam’s option, Wristcam’s obligations hereunder may be performed in whole or in part, and its rights may be exercised in whole or in part, by a Wristcam Affiliate.

 1. DEFINITIONS AND INTERPRETATION

 This Agreement contains a range of capitalized terms, some of which are defined in this Definitions Section, and some of which are defined elsewhere. The section and subsection headings in this Agreement are for convenience of reading only, and are not to be used or relied upon for interpretive purposes.

 “App” means the Wristcam Companion mobile application for Wristcam.

 “Wristcam” means, collectively, the Device and the Firmware. For the avoidance of doubt, references to the purchase or sale (or similar designation) of Wristcam shall not be construed as transferring any title in or to the Firmware.

 “Content” means, but is not limited to, text, data, information, documents, images, descriptions, graphics, photos, sounds, videos, photographs, audio clips, posts, comments, links, software code and scripts.

 “Device” means the hardware component of Wristcam (as well as the accompanying cable and power adapter and any subcomponents thereof).

 “Documentation” means any manuals, specifications, and similar documentation related to the Device and/or Software, which accompany Wristcam, or that are otherwise made available by Wristcam (for example, made available online).

 “Firmware” means the software components pre-installed on, or embedded in, Wristcam.

 “Wristcam Affiliate” means, with respect to Wristcam, any person, organization or entity controlling, controlled by, or under common control with, Wristcam, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.

 “Wristcam Reseller” means a reseller authorized by Wristcam to resell Wristcam to end user customers in a certain geographical territory.

 “Intellectual Property” means any and all inventions, discoveries, improvements, new uses, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media, whether or not protectable or registerable.

 “Intellectual Property Rights” means any and all rights, titles, and interests in and to Intellectual Property, including without limitation patents, copyright and similar authorship rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.

 “Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.

 “Site” means Wristcam.com.

“Software” means, collectively, the Firmware and the App.

 “Warranty Period” means the warranty period set forth and defined in the Warranty Policy.

 

2. AGE REPRESENTATION

 You represent that you are at least ten (10) years old, but in any event of a legal age to form a binding contract. Children under the age of ten (10) are not permitted to use Wristcam or App without approval of a parent or legal guardian.

 

3. ORDERING Wristcam

General. Unless stated otherwise, all pricing will be quoted and payable in US Dollars. Wristcam will charge the payment method you select at the time of order, and you hereby authorize Wristcam to charge the corresponding payment sums to such payment method. If you pay with a credit card, Wristcam may seek pre-authorization of your credit card account prior to your order to verify that the credit card is valid and has the necessary funds or credit available to cover your order. Your order will only be deemed complete once you have received an order confirmation (not just an order acknowledgement). It is your responsibility to provide accurate billing, contact and shipping information when placing your pre-order (and to cooperate with Wristcam in any post-order requests for additional information) in order for Wristcam to process and ship your order, and Wristcam will have no obligation to make efforts to determine the correct billing, contact or shipping information. Any shipping dates or times provided by Wristcam (or a courier) are estimates only and are not guaranteed. The risk of loss of, and damage to, any Wristcam you order, and the responsibility to insure Wristcam, passes to you upon its delivery to you.

Taxes. Except for taxes based on Wristcam net income, you are responsible for any and all taxes, duties, and other governmental charges relating to your order, including without limitation VAT, GST, or any other any sales, use, or consumption tax.

 

4. DOWNLOADING THE APP

To download the app you will be required to have Internet connectivity and/or appropriate telecommunication links. We shall not have any responsibility or liability for any telephone or other costs you may incur.

 

5. FIRMWARE LICENSE

Subject to the terms and conditions of this Agreement, Wristcam grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable license to use the Device’s copy of the Firmware solely: (a) on, and in connection with, the Device you purchased (or otherwise own); and (b) for your own personal and non-commercial use (the “Firmware License“).

For the avoidance of doubt, the copy of the Firmware is only licensed under this Agreement, and no title in or to such copy (or the Firmware itself) passes to you. Except for the Firmware License, you are granted no other right in or to the Firmware, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.

 You may assign the Firmware License once, and only if you meet all of the following conditions: (i) the assignment is of the Firmware License as a whole; (ii) the assignment is permanent; (iii) the assignment is to a party in connection with the transfer of ownership to such party of the Device and all Documentation that accompanied Wristcam, and such party has read and agreed to the terms and conditions of this Agreement; and (iv) you retain no copy (regardless of medium) of the Firmware or said Documentation.

 

6. APP LICENSE

 Subject to the terms and conditions of this Agreement, Wristcam grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable license, during the Term, to install the App on your wearable and mobile device use the App solely: (a) in connection with Wristcam you purchased (or otherwise own); and (b) for your own personal and non-commercial use (the “App License“).

For the avoidance of doubt, the copy of the App you install is only licensed under this Agreement, and no title in or to such copy (or the App itself) passes to you. Except for the App License, you are granted no other right in or to the App, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.

 

7. LICENSE RESTRICTIONS

You shall not (and shall not permit or encourage any third party to) do any of the following: (a) copy or reproduce the portions of the Software or the Software (firmware and software) as a whole; (b) sell, assign, lease, lend, rent, sublicense, or make available the Software to any third party, or otherwise use the Software in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organization, and interfaces) of, the Software; (d) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Software; (e) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software; (f) make a derivative work of the Software, or use the Software to develop any service or product that is the same as (or substantially similar to or competitive with) the Software; (g) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Software, without first (x) sending the results and related study(ies) to Wristcam, and (y) obtaining Wristcam’s written approval of the assumptions, methodologies and other parameters of the testing or study; and/or (h) publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software.

 Your full compliance with all the foregoing licensing limitations is a condition to each of the Firmware License and App License; provided however, that such limitations shall not apply to the extent expressly permitted otherwise in this Agreement, or to the extent any limitation is prohibited by the Law applicable to you or by any Third Party Terms (as defined below).

 References in this Section ‎6‎ (License Restrictions) to “Software” shall be taken to mean (a) the Software, whether in whole or in part; and (b) any Documentation.

8. FEEDBACK

 You have no obligation to provide us with any feedback, ideas or suggestions concerning Wristcam or the App (collectively, “Feedback“). Nevertheless, to the extent you provide us with any Feedback, you hereby grant Wristcam and all Wristcam Affiliates a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sublicensable (through multiple tiers of sublicensees), and assignable license to use, copy, distribute, transmit, modify, create derivative works of, publicly display, publicly perform, and otherwise commercially exploit such Feedback, in any media format and through any media channels (the “Feedback License“). The Feedback License shall survive any termination of this Agreement. Wristcam will not treat Feedback as being confidential or sensitive to you.

 

9. NO DATA STORAGE

 Neither Wristcam nor the App is intended to, and will not operate as, a data storage product or service, and you must not rely on Wristcam or App for the storage of any Content whatsoever. You are solely responsible and liable for the maintenance and backup of all Content on (or otherwise accessible via) Wristcam and the App.

 

10. THIRD PARTY SOFTWARE

The Firmware and the App may each include or utilize third party, including open source, software components (“Third Party Software“), which may be governed by third party terms and conditions (“Third Party Terms“). You agree that your use of such Third Party Software is also governed by the applicable Third Party Terms, and that to the extent of any conflict between this Agreement and any Third Party Terms, the latter shall control. Wristcam may make available in the Documentation a list of any such Third Party Software and related Third Party Terms and acknowledgements, and will comply with any valid request you submit to us for exercising your rights under such Third Party Terms.

 

11. THIRD PARTY CONTENT

 The App may present, or otherwise allow you to view, access, link to, and interact with, Content from third parties and other sources that are not owned or controlled by Wristcam (such Content, “Third Party Content“). The App may also enable you to communicate with the related third parties. The display or communication to you of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Wristcam of such Third Party Content or third party, nor any affiliation between any Wristcam and such third party.

 Wristcam does not assume any responsibility or liability for Third Party Content, or any third party’s terms of use, privacy policies, actions, omissions, or practices. Please read the terms of use and privacy policy of any third party that you interact with before you engage in any such activity.

 

12. RESPONSIBILITY FOR CONTENT

You are solely responsible and liable for the Content that you create, upload to, or otherwise link to your Account (“Account Content“). You hereby grant Wristcam and all Wristcam Affiliates a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sublicensable (through multiple tiers of sublicensees), and assignable license to use, copy, distribute, transmit, modify, create derivative works of, publicly display, publicly perform, and otherwise use your Account Content for the purpose of providing, making available, and promoting the App and any other items or services under this Agreement (the “Content License“). The Content License shall survive any termination of this Agreement.

 You represent that: (a) your Account Content complies with all applicable Laws, and does not infringe, misappropriate, or violate any third party’s intellectual property rights or personal rights (such as, but not limited to, moral rights, rights of privacy, and publicity rights); (b) your Account Content is not disparaging, threatening, offensive, harassing, deceptive, abusive, promoting of violence, and does not contain obscenity or pornography; (c) your Account Content does not contain any or link to any robot, spider, crawler, virus, malware, Trojan horse, spyware, or similar malicious code or item intended (or that has the potential) to damage, disrupt, compromise, or exploit any Software or a third party’s browser, computer, or mobile (or other) device; and (d) you have obtained any and all licenses, permissions, consents, and authorizations required to grant Wristcam the Content License. You also warrant that the foregoing representations in (a) through (d) will continue to remain true and accurate.

 

13. APP FEATURES

 The App contains various functions, features and tools (collectively, “Features“). Wristcam reserves the right to remove, modify, and/or add Features at any time, without any notice to you, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Wristcam. Moreover, if Wristcam determines that you are in breach of any provision of this Agreement, we reserve the right to block you from certain Features, as well as block your presence and your Content from other users. We make Features available because we believe it enhances the user experience of the App; but you acknowledge and agree that just because we make a Feature available, it does not mean we endorse, or can otherwise control, every manner in which such Feature is used. It is your sole responsibility to ensure that you use all Features in accordance with the restrictions described in this Agreement as well as with applicable Laws.

 Certain Features may collect (or be dependent on) data related to your geographic location (“Location Data“). If you wish to use such Features, you agree to provide or make accessible your Location Data. To the extent that we do collect Location Data, we will use it in accordance with the Privacy Policy (as defined below). If you do not provide or make accessible such Location Data then such Features may be limited or not operate.

 

14. PRIVACY

 Wristcam will treat information about your Account and use of Wristcam and App in accordance with Wristcam’s privacy policy available at http://www.wristcam.com/privacy-policy (“Privacy Policy“).

 

15. UPDATES

 We may from time to time provide updates or upgrades to the App (each, an “Update“), but are not under any obligation to do so. Such Updates will be supplied according to our then-current policies, which may include automatic updating or upgrading without any notice to you. You consent to any such automatic updating or upgrading of the App. All references herein to the App shall include its Updates as well, and this Agreement shall govern any Update, unless the Update is accompanied by separate or additional licensing terms, in which case such terms will (also) apply.

 

16. OWNERSHIP

 You hereby acknowledge that the Device, Software and Documentation are or may be protected by intellectual property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Wristcam and its licensors. As between you and Wristcam, Wristcam is the sole and exclusive owner of all Intellectual Property Rights in and to the Device, the Software, the Documentation, and any related services provided pursuant to this Agreement.

 

17. DISCLAIMER OF WARRANTIES

 EXCEPT AS STATED OTHERWISE IN THE WARRANTY POLICY, THE DEVICE, FIRMWARE, APP, DOCUMENTATION, AND ANY SERVICES (SUCH AS WARRANTY SERVICES) ARE PROVIDED AND MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, POSSESSION, QUALITY OF SERVICE, NON-INFRINGEMENT, SATISFACTORY QUALITY, USABILITY, REGARDING LATENT DEFECTS, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY Wristcam.

 IN ADDITION, Wristcam MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:

• REGARDING THE CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, ACCURACY, OR COMPLETENESS OF THE DEVICE, FIRMWARE, APP, OR DOCUMENTATION; OR
• THAT YOUR USE OF Wristcam, APP OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE.

 Some jurisdictions do not allow: (x) the disclaimer of certain implied warranties or conditions, and to the extent applicable to you Wristcam limits the duration of such warranties and conditions to the duration of the Warranty Period; and (y) limitation on the duration of a warranty or condition, and to the extent applicable to you the time limitation of the Warranty Period shall not apply.

 YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION ‎17 (DISCLAIMER OF WARRANTIES) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Wristcam.

 

18. INDEMNIFICATION

 If any third party (such as, but not limited to, a regulator or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Wristcam, a Wristcam Affiliate, and/or any of our respective directors, officers, employees, agents, representatives, customers, suppliers, or licensors (each, an “Indemnitee“), and it is based upon or arises from:

• your use of Wristcam (or part thereof);
• your use of the App; and/or
• your breach of any provision of this Agreement;

 (each of the foregoing, a “Claim“) then, upon written request by Wristcam (to be decided in its sole and absolute discretion), you agree to assume full control of the defense and settlement of the Claim; provided, however, that (a) Wristcam reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Claim; and (b) you shall not settle any Claim, or admit to any liability thereunder, without the express prior written consent of Wristcam.

 In addition, and regardless of whether (or the extent to which) you participated in the defense and/or settlement of a Claim, you agree to indemnify and hold harmless the Indemnitee for and against:

• any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee in the defense of such Claim; and
• any amounts to be paid in settlement of the Claim, or awarded against the Indemnitee under such Claim (such as, but not limited to, damages, liabilities, and fines).

 

19. LIMITATION OF LIABILITY

 IN NO EVENT WILL Wristcam OR ANY Wristcam AFFILIATE BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT (SUCH AS, BUT NOT LIMITED TO, FOR ANY FAILURE TO DELIVER ANY PRODUCT OR SERVICE, OR INABILITY TO USE ANY PRODUCT OR SERVICE), FOR:

• ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
• ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
• ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
• THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.

 THE COMBINED AGGREGATE LIABILITY OF Wristcam AND Wristcam AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT (SUCH AS, BUT NOT LIMITED TO, FOR ANY FAILURE TO DELIVER ANY PRODUCT OR SERVICE, OR INABILITY TO USE ANY PRODUCT OR SERVICE) SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO Wristcam (IF ANY) DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU BRING YOUR CLAIM. ACCORDINGLY, IF YOU HAVE NOT PAID Wristcam ANY AMOUNTS IN SUCH THREE-MONTH PERIOD, Wristcam SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.

 THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY THE LAW APPLICABLE TO YOU:

• EVEN IF Wristcam OR A Wristcam AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS;
• EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND
• REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).

 Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to you, such exclusions and limitations shall not apply.

 YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION ‎19 (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND Wristcam.

 

20. TERMINATION AND SURVIVAL

 If you violate any provision of these Terms, your permission from us to access the Site will terminate automatically. In addition, Wristcam may in its sole discretion terminate your Wristcam account or suspend or terminate your access to the Site at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Site or features of the Site at any time, temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Site or any suspension or termination of your access to or access to the Site. Without limiting the foregoing, you understand and agree that in any termination or suspension of your account or the Site, you will not have access to any data or content posted to the Site or otherwise contained in the Site, and we will have no responsibility to provide you access to such data or content. You may terminate your Wristcam account at any time by contacting customer service via support@wristcam.com.

Wristcam reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Site, or any portion of the Site, for any reason; (2) to modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) to interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

 Wristcam reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue your access to and use of the App (or any part thereof), for any reason whatsoever, at any time, and without notice to you, and you agree that Wristcam will have no liability or obligation to you for any such termination, modification, suspension, or discontinuance. You may terminate this Agreement at any time and for any reason, but only by uninstalling the App and stop using Wristcam devices and services. If you object to any term or condition of this Agreement or any subsequent changes thereto, or become dissatisfied with the App or Wristcam in any way, your only recourse is to terminate this Agreement and uninstall the App. If you terminate the Agreement by uninstalling the App, you agree that Wristcam may still send you messages (whether by email, SMS, or otherwise) notifying you about one of your contacts that has downloaded the App.

 Upon termination of this Agreement: (a) the App License will automatically terminate and you must immediately cease use of the App; and (b) your access to your Account will be disabled and Wristcam may permanently delete your Account Content. Sections ‎12 (Responsibility for Content) and ‎16‎16 (Ownership) through ‎22 (Miscellaneous) shall survive any termination of this Agreement, as shall any provision that is stated to so survive.

 

21. CONTROLLING LAW

 This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, USA, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.

 

22. DISPUTE RESOLUTION

 (a) Mandatory, Bilateral Arbitration. Please read this carefully. It affects your rights. YOU AND Wristcam AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATING TO, THIS AGREEMENT (EACH, A “Dispute“) SHALL BE RESOLVED ONLY BY FINAL AND BINDING BILATERAL ARBITRATION, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s Intellectual Property Rights. This agreement to arbitrate is intended to be broadly interpreted, and expressly includes claims brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227, or any other Law or legal or equitable theory.

Arbitration Rules and Governing Law

• Notwithstanding your and Wristcam’s agreement that California law governs this Agreement and its interpretation and application, you and Wristcam further hereby agree that the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA“), applies to this agreement to arbitrate, and governs all questions of whether a Dispute is subject to arbitration.
• Unless you and Wristcam expressly agree otherwise in writing, the arbitration shall be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS“), pursuant to JAMS Streamlined Arbitration Rules and Procedures (“JAMS Streamlined Rules“), as modified by this Agreement (that is, the terms of this Section 22 govern if they conflict with any of the JAMS Streamlined Rules), and consistent with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (“JAMS Consumer Fairness Standards“). The arbitrator must honor the terms and limitations in the Agreement and can award damages and relief, including any attorneys’ fees authorized by Law. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Wristcam ARE HEREBY EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION (OR OTHER CLASS-WIDE PROCEEDING).
• Notwithstanding JAMS Streamlined Rule 8(b), you and Wristcam agree that any dispute as to the arbitrability of a Dispute brought by either you or Wristcam shall be resolved by a court of competent jurisdiction.
• THIS ARBITRATION AGREEMENT DOES NOT ALLOW CLASS ARBITRATIONS EVEN IF THE PROCEDURES OR RULES OF JAMS WOULD. RATHER, YOU AND Wristcam ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL BASIS. FURTHER, AND UNLESS YOU AND Wristcam EXPRESSLY AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S DISPUTE WITH ANY OTHER PARTY’S DISPUTE(S), AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.

The Arbitrator’s Decision

• The arbitrator will render an award in accordance with JAMS Streamlined Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any litigation should arise between you and Wristcam in any court of competent jurisdiction in a proceeding to vacate or enforce an arbitration award, YOU AND Wristcam WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the proceeding be resolved by a judge. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable Law. Wristcam will not seek, and hereby waives all rights Wristcam may have under applicable Law to recover, attorneys’ fees and expenses if Wristcam prevails in arbitration, unless you assert a frivolous claim.
• The arbitrator’s decision and award is final and binding, with some exceptions under the FAA.

Location & Fees

• Unless you and Wristcam expressly agree otherwise in writing, the arbitration will take place in-person at the following locations: (a) if you are a resident of a country in North America, Central America or South America, the arbitration will take place in California; or (b) if you are a resident of any other country in the world, the arbitration will take place in Tel Aviv-Jaffa, Israel. In the event JAMS indicates that it is unable to provide, or arrange for, an arbitrator in Israel, you agree that the arbitration will be held in California.
• If you initiate an arbitration for a Dispute, you will be required to pay $250 of the fee required to initiate the arbitration and Wristcam will pay any remaining JAMS Case Management Fees and all professional fees for the arbitrator’s services; you will remain responsible for your respective costs relating to counsel, experts, witnesses, and travel to the arbitration.
• If Wristcam initiates an arbitration for a Dispute, Wristcam will pay all administrative fees and costs related to the arbitration, including all professional fees for the arbitrator’s services; you will remain responsible for your costs relating to counsel, experts, witnesses, and travel to the arbitration.
• Notwithstanding the foregoing, either party may bring an individual action in a small claims court for Disputes within the scope of such court’s jurisdiction. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the Law allows, seek relief against Wristcam on your behalf.

 (b) Opt-Ing Out of this Mandatory Arbitration. You can decline this agreement to arbitrate by contacting support@wristcam.com within thirty (30) days of the Effective Date and stating that you (include your first and last name, as well as your mailing address) decline this arbitration agreement. Furthermore, and notwithstanding the provisions regarding modification of this Agreement, if Wristcam changes this Dispute Resolution section after the Effective Date (or the date you accepted any subsequent changes to this Agreement), you may reject any such change by providing Wristcam written notice of such rejection to support@wristcam.com within thirty (30) days of the date such change became effective, as per the terms of this Agreement. In order to be effective, the notice must include your full name and clearly indicate your intent to reject the change(s) to this Dispute Resolution section. By rejecting such change(s), you are agreeing that you will arbitrate any Dispute between you and Wristcam in accordance with the provisions of this Dispute Resolution section as of the Effective Date (or the date you accepted any subsequent changes to this Agreement), unless you declined this arbitration agreement in the manner described above.

 (c) Limitation on Claims. Regardless of any Law to the contrary, any claim or cause of action arising out of, or related to, this Agreement must be filed within one (1) year after such claim or cause of action arose, or else you agree that such claim or cause of action will be barred forever.

 (d) Confidentiality of Disputes. All aspects of the arbitration proceeding, including but not limited to the decision and award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain its confidentiality, unless (and in such cases, only the extent) otherwise required by applicable Law. This paragraph shall not prevent a party from submitting to a court of competent jurisdiction any information necessary to enforce an arbitration award, or to seek injunctive or equitable relief.

 

23. MISCELLANEOUS

 23.1. Entire Agreement. This Agreement (as well as its Annexes) represents the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral or written understandings and statements by the parties with respect to such subject matter. You acknowledge and agree that in entering into this Agreement you have not relied on any representation not expressly set out in this Agreement (for example, statements and explanations in any FAQs or other marketing material on the Site are for convenience only, and are not binding). The language of this Agreement is expressly agreed to be the English language.

 23.2. Assignment. Wristcam may assign this Agreement (or any of its rights and obligations hereunder) without your consent and without notice to you. This Agreement is personal to you, and you shall not assign this Agreement (or any of your obligations or rights hereunder) without Wristcam’s express prior written consent. Any prohibited assignment shall be null and void.

 23.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.

 23.4. Remedies. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.

 23.5. Waiver. No failure or delay on the part of any party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by Wristcam, the writing must be signed by Wristcam), and shall be valid only in the specific instance in which given.

 23.6. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.

 23.7. Notices. You agree that Wristcam may send you notices by email, via your Account, by regular mail, and/or via postings on or through App. Except as stated otherwise in this Agreement or required by Law applicable to you, you agree to send all notices to Wristcam, to support@wristcam.com.

 23.8. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement (for example, Indemnitees), there shall be no third-party beneficiaries to this Agreement.

 23.9. U.S. Government Rights. The Software is “commercial computer software” and the Documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If you are an agency, department, employee or other entity of the United States Government, then your access to and use of the Software and/or the Documentation shall be subject solely to the terms and conditions of this Agreement.

 23.10. Export Compliance. You must not use or otherwise export or re-export any Software and/or Hardware devices and accessories except as authorized by Export Control Laws. “Export Control Laws” means all applicable export and re-export control Laws applicable to you, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.

 23.11. Force Majeure. Wristcam shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Wristcam’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the App shall not be deemed within Wristcam’s reasonable control.

 Last Updated: October 11, 2020

ANNEX 1

 

APP PLATFORM USAGE RULES

 If you download the App from the Apple, Inc. (“Apple“) App Store (or in any event if you download an Apple iOS app) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:

• You acknowledge and agree that:

• the Agreement is concluded between Wristcam and you only, and not with Apple, and Wristcam and its licensors, and not Apple, are solely responsible for the App and the content thereof.
• your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
• the App License granted herein is limited to a non-transferable right to use the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
• Wristcam is solely responsible for providing any maintenance and support services with respect to the App, as specified in the Agreement, or as required under applicable Law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
• Wristcam is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the App to you.  To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Wristcam’s sole responsibility;
• Wristcam Inc., and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation;
• in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Apple shall not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
• Apple and its subsidiaries are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.
• You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints, or claims regarding the App, please contact Wristcam at support@wristcam.com.

 By entering into the Agreement you, to the extent legally permitted, hereby waive any applicable law requiring that the Agreement be localized to meet your language and other local requirements.  To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed App End User License Agreement which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).