ActionTiles™ Terms of Service
|Revised: Feb 15, 2017|
These terms are a legal agreement between Thingterfaces LP, a Delaware limited partnership, (“We” or “Provider”) and you as the user (“you” or the “User”).
A User who has previously executed a license agreement for the use of ActionTiles™ or any Thingterfaces™ services or software hereby agrees to the replacement of that license and agrees to be bound by these terms as a condition of using any updates or upgrades to ActionTiles. These terms replace the previous license agreement.
Please read all the terms before indicating acceptance. These terms apply to ActionTiles or any Thingterfaces services or software, support and online services and any modules, updates, upgrades, supplements, new features, and support services for ActionTiles or any Thingterfaces services or software, unless other terms accompany those items. If so, those terms apply. By using ActionTiles or any Thingterfaces services or software, support and online services, or any updates to the software, User accepts these terms. If User does not accept them, User is not authorized to use the software or services or any updates to the software. User is bound by these terms even if it does not read all the terms.
1.1 “ActionTiles” means the ActionTiles services;
1.2 “Device Data” means aggregate data collected and stored from the various services, the video or audio recording, or data sensing devices or hardware to which ActionTiles can connect;
1.3 “Provider IP” is defined in Section 3.0;
1.4 “Personal Information” means personal information about an identifiable individual but excludes business contact information or anonymized data;
1.6 “Provider” is defined at the top of page 1 of these Terms of Service;
1.7 “Term” is defined in Section 11.1;
1.8 “User Configurations” means a User’s settings, user preferences, configurations, sharing and privacy settings and customized arrangements as set by a User within ActionTiles;
1.9 “User Submission” means a User’s submission to ActionTiles online support and feedback forum;
1.10 “We” is defined at the top of page 1 of these Terms of Service;
1.11 “you”, “your” or the “User” means a user of ActionTiles under these Terms of Service.
2.0 LICENSE TO SERVICES
2.1 Grant of Access. You have the right under these Terms of Service to access and use ActionTiles on a non-exclusive and non-transferable basis during the Term.
2.2 Conditions of Access. In order to use the ActionTiles, Users may be required to sign up for an account, provide a verifiable email address and name, and select a password. Users promise to provide Provider with accurate, complete, and updated registration information.
You represent and warrant that you are of legal age to form a binding contract. If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms of Service.
You will only use ActionTiles for your personal, non-commercial use, and only in a manner that complies with all laws that apply to you. If your use of ActionTiles is prohibited by applicable laws, then you aren’t authorized to use ActionTiles. We can’t and won’t be responsible for your using ActionTiles in a way that breaks the law.
2.3 User’s Account. You are responsible for all uses of your account. You agree to immediately notify us of any unauthorized use of ActionTiles or your account. You represent and warrant that User or the person entering into these Terms of Service has the authority to do so, and in doing so will not violate any other agreement to which User is a party.
2.4 Changes to the Platform. In order to improve or enhance ActionTiles or for other business reasons, we may change ActionTiles over time. We may suspend or discontinue any feature or part of ActionTiles, or we may introduce new features or impose limits on certain features or restrict access to parts or all of ActionTiles. In some cases, the changes we make to ActionTiles may cause older hardware devices, third party services, software configurations or setups to cease working with ActionTiles, and you may be required to upgrade or change these devices, services, configurations or setups in order to continue using ActionTiles. We will endeavor to provide notice to Users when we make a material change to ActionTiles that would adversely affect you, but this isn’t always practical or possible.
2.5 Usage Restrictions on “Unlimited” Features. Like any web-based service, ActionTiles is subject to limits due to outages and downtime (including unplanned or unscheduled outages) either for maintenance, or for reasons beyond our control. You also acknowledge and agree that for certain ActionTiles features that are offered, advertised or sold as “unlimited”, we may impose restrictions on these features if your usage is improper, substantially exceeds or differs from normal use by other users, or harms our interests or those of another user of ActionTiles.
3.0 OUR INTELLECTUAL PROPERTY
3.1 Our Intellectual Property Rights. Provider and its third-party licensors own any and all any intellectual property rights (including applicable patent rights) and all right, title and interest in and to ActionTiles, any documentation supplied as part of ActionTiles, any data under Section 12.0 and the trade-marks of Provider (collectively the “Provider IP”) immediately upon creation.
Provider IP is protected by Canadian, US and international copyrights and may be subject to applicable patent rights. All inventions, discoveries, improvements, software, copyright, know-how or other intellectual property, whether or not protected by patent or copyright, created prior to or during these Terms of Service pertaining to Provider IP, are and will remain the sole and absolute property of Provider. User will maintain any proprietary notices which may appear thereon, and to the extent any right, title or interest in and to Provider IP does not vest in Provider automatically, the User does hereby assign and transfer all such right, title or interest in and to Provider IP to Provider.
3.2 DMCA Policy. For US users, Provider may introduce a Digital Millennium Copyright Act (“DMCA”) copyright dispute policy and that policy will apply to DMCA disputes related to ActionTiles.
4.0 PERSONAL INFORMATION & USER SUBMISSION
4.2 Children’s Privacy. For US users, the Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, you are not authorized to use ActionTiles; please do not attempt to register or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible.
5.0 USER SUBMISSION & DEVICE DATA
5.1 User Submission. We do not claim any ownership interest in your User Submission. You represent and warrant that you own or otherwise control all rights to such User Submission and that posting and use of such User Submission on ActionTiles will not infringe or violate the rights of any third party. We reserve the right to remove any User Submission from ActionTiles at any time, for any reason in our sole discretion, and without notice.
5.3 Archiving. Unless explicitly acknowledged or committed to in writing as part of a feature of ActionTiles, we have no obligation to archive, back-up, maintain or keep copies of User Configurations, User Submissions or Device Data for any specified period of time, to guarantee access to User Configurations, User Submissions or Device Data, and we have no liability for User Configurations User Submissions or Device Data submitted to ActionTiles that becomes unavailable through ActionTiles.
6.0 COST OF USING ACTIONTILES
6.1 Cost. We reserve the right to require payment of fees for ActionTiles and/or for certain features of ActionTiles. If you elect to purchase a license for such features, you shall pay all applicable fees, as described on ActionTiles in connection with such features.
7.1 Support. Unless you have entered into a separate support agreement with us, we do not provide technical support for Users. We may provide certain support services as a courtesy.
7.2 Limitations. If we elect to provide support as a courtesy, or you obtain support under a separate support agreement with us, our responsibility for support is explicitly related to ActionTiles and does not include support, troubleshooting or maintenance for the hardware, software or modules of third parties or other platform vendors.
7.3 Unsolicited Suggestions. If Users submit unsolicited suggestions, product improvement requests, ideas or user feedback, this does not obligate Provider to implement any changes to the product, and Provider makes no assurances that any such ideas will be treated as confidential or proprietary. You hereby grant to us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use, commercialize or incorporate into ActionTiles or our other products or services any suggestions, enhancement requests, recommendations or other feedback that you provide to us.
8.1 Restrictions. You shall not copy, modify, publish, transmit, transfer, dispose of, reproduce, create derivative works based on, or otherwise exploit any Provider IP, and you shall not contribute any User Submission or otherwise use ActionTiles or interact with ActionTiles in a manner that:
- (a) infringes or violates the intellectual property rights or any other rights of anyone else (including Provider);
- (b) violates any applicable law or regulation;
- (c) is harmful, fraudulent, deceptive, abusive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
- (d) jeopardizes the security of any user account (such as allowing someone else to log on as you on ActionTiles);
- (e) attempts, in any manner, to obtain the password, PIN number, account, or other security information from any other user;
- (f) impersonates any person or entity, or forges or manipulates headers to disguise the origin of any User Submission;
- (g) violates the security of any computer network, or cracks any passwords, PIN numbers or security encryption codes;
- (h) runs maillist, listserv, any form of auto-responder or “spam” on ActionTiles, or that otherwise interfere with the proper working of ActionTiles (including by placing an unreasonable load on our infrastructure);
- (i) submits, imports, uploads or inserts any content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots;
- (j) “crawls,” “scrapes,” or “spiders” any page or portion of ActionTiles (through use of manual or automated means);
- (k) decompiles, reverse engineers, or otherwise attempts to obtain the source code of ActionTiles; or
- (l) otherwise offends our acceptable use guidelines or policies.
9.0 LIMITATION OF LIABILITY & DISCLAIMER OF WARRANTY
9.1 Risk Acknowledgement. You accept the risk of using ActionTiles. ActionTiles is not designed for use with machinery, power tools, medical equipment, or other similar devices or hardware. You acknowledge and agree that you will not connect any physical devices or third party services to ActionTiles (or otherwise use ActionTiles) in a manner that could be dangerous to you or to others, or which could cause injury or death, or cause damage to or loss of any property (whether real, personal, tangible or intangible). For example, you should never connect heavy machinery, power tools, medical equipment, or other similar devices of hardware to ActionTiles.
- (a) ActionTiles is provided “AS IS” without warranties, conditions or representations of any kind, and Provider expressly disclaims, to the fullest extent permitted by applicable law, any representation, warranty or condition, express or implied, statutory or otherwise, whether arising from trade or course of dealing, including, without limitation, any warranty that ActionTiles (i) shall correspond with a particular description, (ii) is of merchantable quality, (iii) is fit for User’s particular purpose, (iv) is durable for a reasonable period of time, (v) does not and will not infringe any patent, trade-mark, trade-secret or other intellectual property or other proprietary rights of any third party, (vi) is bug or error free, (vii) is accessible through all devices, hardware or browsers, or (viii) will be free from outages or downtimes, or will be available at all times.
- (b) User acknowledges that some devices, services, or hardware might not be compatible with ActionTiles. User acknowledges that compatibility and interoperability of hardware and software, and the entry, conversion and storage of data is subject to human and machine error and that Provider shall not be liable to User for any damages or losses due to failures in interoperability or compatibility of hardware and software, or due to loss, corruption or errors in data, including detrimental reliance on inaccurate data, corrupted data or errors in data.
- (c) User is responsible for its own safety and the safety of others in its use of ActionTiles. Provider disclaims any responsibility for any User Submissions which may be posted within ActionTiles; we have not reviewed, endorsed or approved any suggestions, instructions or recommendations made by users, such as any hardware, service, or device recommendations, electrical modifications, wiring suggestions, or other changes to the physical environment for use of ActionTiles. Make sure you follow all safety rules, building code requirements and reasonable precautions.
- (d) Provider is not responsible for third-party platforms (including the SmartThings™ platform), vendors, data-hosts or resellers. Provider makes no representations or warranties with respect to such third-party platforms (including the SmartThings™ platform), vendors, data-hosts or resellers, nor do they have any authority to bind Provider or modify any terms of these terms, verbally or otherwise. Provider does not warrant and disclaims all liability in connection with any third-party software, modules, viruses, hardware or failures in the Internet. The Provider does not warrant that ActionTiles will be compatible with all the hardware, devices or platforms (including the SmartThings™ platform) which may be used now or in the future. User acknowledges that Provider has no authority over third-party platforms (including the SmartThings™ platform), vendors, data-hosts or resellers and cannot obligate them to electronically integrate their hardware or software with ActionTiles.
9.3 ALLOCATION OF RISK. Provider is not an insurer. You are responsible for maintaining insurance covering all loss, damage or expense, whether for property damage, personal injury (including death), economic losses or any other form of loss, damage or expense arising out of or from (i) these terms, or (ii) ActionTiles. Provider shall not be liable for any monetary damages whatsoever with respect to User’s use of the Provider IP hereunder, nor shall Provider be liable for any indirect, incidental, consequential, special, punitive or exemplary damages arising out of these Terms of Service, even if Provider is advised of the possibility of such damages. The entire risk as to the results and performance of the Provider IP is assumed by User and User agrees to implement and adopt reasonable measures to examine and confirm results prior to use, to use reasonable precautions, to back-up and reconstruct data, and limit exposure to errors and failures in data, interoperability and compatibility of software and hardware.
9.4 LIMITATION OF LIABILITY. The total liability of Provider, whether under the express or implied terms of these Terms of Service, in tort (including negligence or other duty of care or other legal theory) or at common law, for any loss or damage including but not limited to any data loss or corruption, suffered by User or any of User’s Users or third parties, whether direct, indirect or special, or any other similar damage that may arise or does arise from the Provider IP or any breach of these Terms of Service by Provider, shall in no event exceed the fees paid by User (if any) during the six (6) month period immediately preceding User’s first assertion of any claim against Provider under these Terms of Service, or the amount of $50, whichever amount is lower. Some jurisdictions do not allow the exclusion or limitation of certain damages, so the above limitation and exclusions may not apply to you.
9.5 INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT. In the event any litigation is commenced by an unaffiliated third party alleging that ActionTiles, when used in accordance with these Terms of Service, infringes a valid patent issued in Canada or the United States on or before the start date of your use, or any copyright or trade-mark registered in Canada on or before the start date of your use, User’s sole remedy shall be as follows: to immediately notify Provider in writing and thereafter Provider may elect at its option and expense and without obligation to do whether before or after any injunction or other order by a court of competent jurisdiction, to either (a) procure for User the right to continue to access ActionTiles, (b) modify ActionTiles to make it non-infringing, (c) replace ActionTiles with a functional non-infringing equivalent, in which case User will cease using ActionTiles immediately, or (d) terminate these Terms of Service and refund the fees (if any) paid by User to Provider during the six (6) month period immediately preceding User’s first assertion of any claim against Provider under these Terms of Service. The foregoing represents User’s entire and sole remedy and the entire and sole liability of Provider for infringement or claims of infringement relating to ActionTiles.
The foregoing indemnity obligation shall only be available if (a) the alleged and/or actual infringement has not been caused by the use of a superseded version of ActionTiles (if the infringement would have been avoided by the use of a then-current unaltered release of ActionTiles), or caused by the use of ActionTiles in conjunction with any other product or service; (b) User promptly notifies Provider in writing within ten (10) days of User first becoming aware of each such claims; and (c) User does not make any admission against Provider’s interests and User does not agree to any settlement of any such claim without the prior written consent of Provider; and (d) User, at the request of Provider, provides all reasonable assistance to Provider in connection with the defence, litigation, and/or settlement by Provider of each such claim; and (e) Provider has sole control over the selection and retainer of legal counsel, as well as over the litigation and/or the settlement of each such claim.
If any other type of third party claim is brought against User regarding any Provider IP, User must notify Provider promptly in writing. Provider may, at its option, choose to treat these claims as being covered by this section.
10.1 User Indemnity. User indemnifies, holds harmless and defends Provider against any and all third-party claims (including all associated legal fees and disbursements actually incurred) against Provider arising out of a breach by User of the obligations under these Terms of Service, or the use or misuse of ActionTiles by User.
11.0 TERM & TERMINATION
11.1 Term. These Terms of Service will continue until terminated under Section 11.2 or until release of a new version or major upgrade of ActionTiles (the “Term”).
11.2 Termination. User’s account may be automatically suspended if User or any of User’s Users breach any term of these Terms of Service. User may terminate these Terms of Service without cause at any time, in which case any prepaid amounts will be non-refundable. Provider shall have the right to terminate these Terms of Service (a) in the event of User’s failure to pay any applicable fees or if User is in breach of any material term of these Terms of Service or any other agreement with Provider; or (b) immediately without notice if User is bankrupt, insolvent or the subject of any proceeding under applicable bankruptcy law; or (c) on written notice to User, which may be delivered by email or by posting a written notice on ActionTiles. Such termination shall be in addition to and not in lieu of any legal remedies otherwise available to the terminating party.
11.3 Effect of Termination. Upon termination or expiry of these Terms of Service, User will cease all use of and access to ActionTiles.
12.0 VERIFICATION & PRODUCT IMPROVEMENT
12.1 Verification. Provider has the right to monitor usage and verify compliance with these Terms of Service.
13.0 GOVERNING LAW & DISPUTES
13.1 Governing Law & Disputes. These Terms of Service are governed by the laws of the Province of Alberta, Canada, without regard to its conflict of laws rules.
13.2 ARBITRATION. (a) Except where expressly prohibited by applicable statute, BOTH YOU AND PROVIDER AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM UNDER THESE TERMS.
Other rights that you would have if you went to court may also be unavailable or may be limited in arbitration. Any claim, dispute or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort, injunctive and equitable claims) between you and Provider (including its agents, employees, successors, assigns, and subsidiaries) arising from or relating in any way to these Terms or your use or purchase of a license for ActionTiles, SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration shall be administered pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. subject to the Arbitration Act (Alberta), as amended (or if unavailable, a substitute forum agreed to by both parties). The arbitration shall take place in Calgary, Alberta. The language of the arbitration shall be English.
The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The decision of the arbitrator shall be binding and conclusive upon the parties, and they shall comply with such decision in good faith, and each party hereby submits itself to the jurisdiction of the courts of the place where the arbitration is held for the entry of judgment with respect to the decision of the arbitrator hereunder. Judgment upon the award may be entered in the courts of Alberta, Canada. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity.
Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR PROVIDER SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER USERS, OR ARBITRATE OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR SIMILAR CAPACITY.
(b) If any part of this Section 13.2 is found unenforceable, or if you are located in a state or province where a statute expressly indicates that an arbitration requirement will not apply to you as a consumer, then the unenforceable provision of this section shall be severed and you agree to solely make any claim against Provider in a small claims court located in the Province of Alberta or in the state or province in which you reside as a consumer.
(c) Notwithstanding the provisions in this Section 13.2 or anywhere else in this Agreement, Provider shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its intellectual property rights or to preserve the status quo.
14.0 GENERAL TERMS
14.1 Commercial Third-Party Costs & Licenses. User is required to obtain and maintain any commercial third-party hardware and software (such as SmartThings™ ) which may be required to use and access ActionTiles including any wireless data communications services from a service provider; roaming or data charges, carrier charges, and any end-user devices.
14.2 Assignment. User will not assign, transfer, encumber or otherwise dispose of any or all of the rights granted to User under these Terms of Service without the prior written consent of Provider. Provider may assign these Terms of Service to a third-party upon written notice.
14.3 No Partnership. Nothing contained in these Terms of Service is to be deemed or construed to create between the parties a partnership or joint venture. No party has the authority to act on behalf of any other party, or to commit any other party in any manner at all or cause any other party’s name to be used in any way not specifically authorized by these Terms of Service.
14.4 Enurement. Subject to the limitations in these Terms of Service, these Terms of Service operates for the benefit of and is binding on the parties and their respective successors and permitted assigns.
14.5 No Waiver. No condoning, excusing or overlooking by any party of any default, breach or non-observance by any other party at any time regarding any terms of these Terms of Service operates as a waiver of that party’s rights under these Terms of Service. No exercise of a specific right or remedy by any party precludes it from or prejudices it in exercising another right or pursuing another remedy or maintaining an action to which it may otherwise be entitled either at law or in equity.
14.6 Survival. All terms which require performance by the parties after the expiry or termination of these Terms of Service, will remain in force despite these Terms of Service’s expiry or termination for any reason. The following terms shall survive termination: 3.0, 9.0, 11.3 and 13.0.
14.7 Language. It is the express will of the parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
14.8 Severability. Part or all of any section that is indefinite, invalid, illegal or otherwise voidable or unenforceable may be severed and the balance of these Terms of Service will continue in full force and effect.
14.9 Export Controls. User may not use, export or re-export ActionTiles except as authorized by applicable United States or Canadian law. By using ActionTiles, User represents and warrants that User is not located in, under control of, or a national or resident of any country subject to export controls.
14.10 Entire Agreement. These Terms of Service (collectively the “Agreement”) set out the entire understanding between the parties related to the licensing of ActionTiles.
14.11 Changes. On release of any update or upgrade to ActionTiles, Provider reserves the right to modify these Terms of Service and to impose new or additional terms or conditions on User’s use of ActionTiles. The then-current terms (including any modifications and additional Terms of Service if applicable) will be presented to the User and will be effective immediately upon User’s acceptance of the terms and continued use of ActionTiles.
14.12 Electronic Acceptance. These Terms of Service may be agreed to by electronic acceptance.
If you have questions about these terms or wish to contact Provider for any reason, please contact:
3-11 Bellerose Drive
St. Albert AB T8N 5C9