ADVANCED VENTIALATION APPLICATIONS, INC.

TERMS OF SERVICE

 

These Terms of Service (“Terms”) apply to your access and use of the AVA Breathe Service. The “AVA Breathe Service” includes our devices including associated firmware, applications, software, websites, APIs, products, and services.

 

These Terms are an agreement between you and Advanced Ventilation Applications, Inc., located at 2627 Hanover St., Palo Alto, CA 94304, USA. When the Terms mention “AVA Breathe,” “we,” “us,” or “our,” they refer to Advanced Ventilation Applications, Inc.

 

You must accept these Terms to create an AVA Breathe account and to access or use the AVA Breathe Service. If you do not have an account, you accept these Terms by using any part of the AVA Breathe Service. If you do not accept these terms, do not create an account or use the AVA Breathe Service.

 

1. READ OUR PRIVACY POLICY

 

For information about our data practices, please see our Privacy Policy. By accessing or using the AVA Breathe Service, you agree that we can collect and use your information in accordance with the Privacy Policy.

 

2. USE OF THE AVA BREATHE SERVICE

 

Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the AVA Breathe Service unless their parent has consented in accordance with applicable law. Additionally, you cannot access or use the AVA Breathe Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the AVA Breathe Service.

 

You may only connect to the AVA Breathe Service using (i) a device that is manufactured, distributed, or sold by Advanced Ventilation Applications itself or through its authorized resellers or agents; (ii) our mobile applications and software, or approved third-party applications, software, or devices; or (iii) our websites (“Authorized Connections”). You may not connect to the AVA Breathe Service with any device that is not manufactured, distributed, or sold by Advanced Ventilation Applications  itself or through its authorized resellers or agents (such as a knock off or counterfeit version of an AVA Breathe device) ; or any unauthorized application or third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the AVA Breathe Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact info@AVABreathe.com.

 

3. CREATING AN ACCOUNT

 

Full use of the AVA Breathe Service requires that you create an account by providing us with information such as your full name and a valid email address, as well as a strong password. You are responsible for all activity that occurs in association with your account. AVA Breathe is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact info@AVABreathe.com if you discover or suspect any security breach related to the AVA Breathe Service or your account.

 

4. NECESSARY EQUIPMENT

 

Full use of the AVA Breathe Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the AVA Breathe Service and it is your responsibility to ensure the equipment’s functionality. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges.

 

5. POSTING YOUR CONTENT ON THE AVA BREATHE SERVICE

 

AVA Breathe may enable you to post, upload, store, share, send, or display photos, images, video, data, text, comments, and other information and content (“Your Content”) to and via the AVA Breathe Service. You retain all rights to Your Content that you post to the AVA Breathe Service. By making Your Content available on or through the AVA Breathe Service you hereby grant to Advanced Ventilation Applications a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute Your Content, in whole or in part, including your name and likeness, in any media. The rights you grant us in this Section 5 are only for the limited purpose of offering and improving the AVA Breathe Service.

You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms.

 

You represent and warrant that Your Content, the use and provision of Your Content on the AVA Breathe Service, and your use of the AVA Breathe Service will not (a) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading, or deceptive; (d) be defamatory, obscene, pornographic, vulgar, or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.

 

You further agree not to (1) upload any content that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (2) use or attempt to use another user’s account without authorization, or impersonate any person or entity; (3) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (4) post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (5) use the AVA Breathe Service in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the AVA Breathe Service, or which may expose us or our users to any harm or liability of any type.

 

Advanced Ventilation Applications may, in its sole discretion, alter, remove, or refuse to display any of Your Content, and may forbid you from posting, uploading, storing, sharing, sending, or displaying Your Content to and via the AVA Breathe Service.

 

6. AVA BREATHE’S RIGHTS

 

“AVA Breathe Content” includes any photos, images, graphics, video, audio, data, text, music, comments, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through the AVA Breathe Service. AVA Breathe Content, the AVA Breathe Service, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. We reserve all rights not expressly set forth in these Terms. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the AVA Breathe Service. Our logos and any other AVA Breathe trademarks that may appear on the AVA Breathe Service, and the overall look and feel of the AVA Breathe Service, including page headers, graphics, icons, and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, product, and service names and company names or logos mentioned on the AVA Breathe Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.

 

7. WHAT YOU CAN DO ON THE AVA BREATHE SERVICE

 

The AVA Breathe Service is intended for your personal, non-commercial use.

 

Advanced Ventilation Applications grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the AVA Breathe Service, (2) access and view the AVA Breathe Content, (3) access and use the software and mobile applications provided by the AVA Breathe Service, and (4) use the software that is embedded into AVA Breathe devices as authorized in these Terms. With respect to items (3) and (4), this license includes any third-party software embedded in any AVA Breathe Service. This license is provided solely for your personal, non-commercial use and enjoyment of the AVA Breathe Service as permitted in these Terms.

You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the AVA Breathe Content, AVA Breathe Service or any portion thereof (including any third-party software), except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by AVA Breathe or its licensors, except for the licenses and rights expressly granted in these Terms.

 

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the AVA Breathe Service: (1) use, display, mirror, or frame the AVA Breathe Service or any individual element within the AVA Breathe Service, including the layout and design of any page, without AVA Breathe’s express written consent; (2) use AVA Breathe’s name, any AVA Breathe trademark or logo, or any AVA Breathe proprietary information without AVA Breathe’s express written consent; (3) access or tamper with non-public areas of the AVA Breathe Service, AVA Breathe’s computer systems, or the technical delivery systems of AVA Breathe’s providers; (4) test the vulnerability of any AVA Breathe system or breach any security or authentication measures; (5) circumvent any technological measure implemented by AVA Breathe or any of AVA Breathe’s providers or any other third party (including another user) to protect the AVA Breathe Service; (6) access the AVA Breathe Service or AVA Breathe Content through the use of any mechanism other than through the use of an Authorized Connection, AVA Breathe Service, or AVA Breathe API; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that AVA Breathe provides to you or any other part of the AVA Breathe Service.

 

8. HYPERLINKS

 

You are granted a limited, nonexclusive, and nontransferable right to create a text hyperlink to the AVA Breathe Service for noncommercial purposes, provided that such link does not portray us or any of our products or services in a false, misleading, derogatory, or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing, or otherwise objectionable. This limited right may be revoked at any time in AVA Breathe’s sole discretion.

 

9. OUR ENFORCEMENT RIGHTS

 

We reserve the right (but are not required) to remove or disable access to the AVA Breathe Service, any AVA Breathe Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the AVA Breathe Content, Your Content, or your use of the AVA Breathe Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the AVA Breathe Service, and in response may take any action we may deem appropriate.

 

10. USE THE AVA BREATHE SERVICE AT YOUR OWN RISK

 

If you rely on any AVA Breathe Content or the AVA Breathe Service, you do so solely at your own risk.

 

Our goal is to provide helpful and accurate information on the AVA Breathe Service, but we make no endorsement, representation, or warranty of any kind about any AVA Breathe Content, information, or services. The accuracy of the data collected and presented through the AVA Breathe Service is not intended to match that of medical devices or scientific measurement devices.

We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the AVA Breathe Service. AVA Breathe Content and the AVA Breathe Service may change from time to time or vary by geographic location.

Use of the AVA Breathe Service should not replace your good judgment and common sense. Please read and comply with all safety notices that accompany your use of the AVA Breathe Service.

 

11. CONSULT YOUR DOCTOR BEFORE USING THE AVA BREATHE SERVICE

 

The AVA Breathe Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical condition, consult your doctor before using the AVA Breathe Service. If you experience a medical emergency, stop using the AVA Breathe Service and consult with a medical professional. We are not responsible for any health problems that may result from content or events you learn about through the AVA Breathe Service.

 

12. DMCA/COPYRIGHT POLICY

 

AVA Breathe respects the intellectual property of others and expects its users to do the same. It is AVA Breathe’s policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe the rights of copyright holders.

 

13. TERMS OF SALE

 

The Terms of Sale policy applies to purchases of physical goods from AVA Breathe. The Terms of Sale are incorporated into and made a part of these Terms. All orders placed are subject to AVA Breathe’s acceptance. We may accept, decline, or place limits on your order for any reason.

 

14. FEEDBACK AND SUBMISSIONS POLICY

 

If you submit comments, ideas, or feedback to us, you agree that we can use, disclose, reproduce, distribute, and exploit them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by AVA Breathe, or obtained from sources other than you.

 

15. CONTESTS AND GIVEAWAYS

 

Additional terms and conditions may apply to surveys, contests, giveaways, and other promotions sponsored by AVA Breathe or its partners. It is your responsibility to carefully review those terms and conditions.

 

16. ALERTS AND NOTIFICATIONS

 

As part of your use of the AVA Breathe Service, you may receive notifications, text messages, alerts, emails, and other electronic communications. You agree to the receipt of these communications. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.

 

17. THIRD-PARTY SERVICES

 

The AVA Breathe Service may display or permit linking or other access to or use of third-party content, promotions, websites, apps, services and resources (collectively “Third-Party Services”) that are not under AVA Breathe’s control. This may include the opportunity for you to link your AVA Breathe account, AVA Breathe data, or the AVA Breathe Service with Third-Party Services. We provide these links only as a convenience and are not responsible for the products, services, or other content that are available from Third-Party Services. You acknowledge that any Third-Party Services that you use in connection with the AVA Breathe Service, such as third party applications accessed on AVA Breathe devices, are not part of the AVA Breathe Service and are not controlled by AVA Breathe, and you take sole responsibility and assume all risk arising from your interaction with or use of any Third-Party Services. You also acknowledge that these Terms and the AVA Breathe Privacy Policy do not apply to any Third-Party Services. You are responsible for reading and understanding the terms and conditions and privacy policy that applies to your use of any Third-Party Services.

 

18. CHANGES TO THE AVA BREATHE SERVICE

 

AVA Breathe may change or discontinue, temporarily or permanently, any feature, component, or content of the AVA Breathe Service at any time without notice. AVA Breathe is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the AVA Breathe Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by AVA Breathe products without prior notice to you.

 

19. TERMINATION

 

We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the AVA Breathe Service, or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such suspension, deactivation, or termination, we may delete or remove Your Content and other information related to your account. You may close your account at any time by contacting info@avabreathe.com. Upon any termination of these Terms or suspension, termination, or discontinuation of the AVA Breathe Service or your account, the following provisions of these Terms will survive: Sections 1, 5, 6, 9, 10, 11, 13, 14, 16, 17, 19, 20, 21, 22, 23, 24, 25.

 

20. DISCLAIMERS

 

THE AVA BREATHE SERVICE AND AVA BREATHE CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THESE TERMS OR THE AVA BREATHE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the AVA Breathe Service or AVA Breathe Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the AVA Breathe Service or any AVA Breathe Content.

 

21. INDEMNITY

 

You will indemnify and hold harmless AVA Breathe or its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the AVA Breathe Service, (ii) Your Content, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

 

22. LIMITATION OF LIABILITY

 

NEITHER AVA BREATHE, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE AVA BREATHE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE AVA BREATHE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AVA BREATHE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

IN NO EVENT WILL AVA BREATHE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE AVA BREATHE SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO AVA BREATHE FOR USE OF THE AVA BREATHE SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO AVA BREATHE, AS APPLICABLE.

 

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AVA BREATHE AND YOU.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

 

23. DISPUTE RESOLUTION

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

 

You agree that any dispute between you and Advanced Ventilation Applications arising out of or relating to these Terms of Service, the AVA Breathe Service, or any other AVA Breathe products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.

 

Governing Law: Except as otherwise required by applicable law, the Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.

 

Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against  Advanced Ventilation Applications, you agree to try to resolve the Dispute informally by contacting info@AVABreathe.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Advanced Ventilation Applications may bring a formal proceeding.

 

We Both Agree To Arbitrate: You and Advanced Ventilation Applications agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

 

Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting info@AVABreathe.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement.

Arbitration Procedures: Any arbitration will be administered by Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its arbitration rules and procedures.  The arbitration will be held in the United States county where you live or work, San Francisco, California, or any other location we agree to.

 

Arbitration Fees: The AAA rules will govern payment of all arbitration fees.  Advanced Ventilation Applications will pay all arbitration fees for claims less than $10,000.  Advanced Ventilation Applications  will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

 

Exceptions to Agreement to Arbitrate: Either you or  Advanced Ventilation Applications may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the AVA Breathe products or AVA Breathe Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

 

No Class Actions: You may only resolve Disputes with  Advanced Ventilation Applications on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.

 

Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and  Advanced Ventilation Applications agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and  Advanced Ventilation Applications consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.

 

Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the AVA Breathe products or AVA Breathe Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.

 

24. GENERAL TERMS

 

Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between  Advanced Ventilation Applications and you regarding the AVA Breathe Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between  Advanced Ventilation Applications and you regarding the AVA Breathe Service and AVA Breathe Content.

 

We will notify you before we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the AVA Breathe Service. When you use the AVA Breathe Service after a modification becomes effective, you are telling us that you accept the modified Terms.

 

If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

 

You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without  Advanced Ventilation Applications’ prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null.  Advanced Ventilation Applications may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.

 

Any notices or other communications provided by  Advanced Ventilation Applications under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or (ii) by posting to the AVA Breathe Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.

Advanced Ventilation Applications’ failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of  Advanced Ventilation Applications.. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

 

25. ADDITIONAL TERMS MAY APPLY

 

Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.

 

CONTACT US

 

PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.

 

You may contact us at info@AVABreathe.com.