PLEASE READ THE FOLLOWING TERMS CAREFULLY.
1. Spoondrift Service Overview. The Spoondrift Service provides a platform through which you may interact with your Spoondrift Spotter hardware device or devices (collectively and individually your “Spotter”). Your Spotter generates oceanographic observations such as wave and current information, GPS location, condition related alerts and updates, and other related data (collectively, “Spotter Data”). The Service allows you to view and download Spotter Data transmitted to Spoondrift through the Spotter’s integrated satellite telemetry, or for you to upload Spotter Data stored on the Spotter’s internal memory. The Services also allow you to communicate with your Spotter remotely by changing the settings in your account around how the Spotter operates, or how often it transmits data.
2. Eligibility. By agreeing to these Terms, you represent and warrant to us that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have the authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, billing information, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at email@example.com.
4. General Payment Terms. Certain features of the Service may require you to pay fees, in addition to and separate from your purchase(s) of a Spotter device. Additional terms or policies apply to your purchase of Spotter, and these Terms of Sale are incorporated by this reference into, and made a part of, these Terms.
4.1 Price. Before you pay any fees related to the Service, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable, except as provided in Section 10.4. Spoondrift reserves the right to determine pricing for the Service. Spoondrift will make reasonable efforts to keep pricing information published on the website up-to-date. We encourage you to check our website periodically for current pricing information. Spoondrift may change the fees for any feature of the Service, including additional fees or charges, if Spoondrift gives you advance notice of the changes before they apply (with the exception of Remote Access Packages as described in the Terms of Sale, in which case advanced notice may or may not be provided). Spoondrift, at its sole discretion, may make promotional offers with different features and different pricing to any of Spoondrift’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Authorization. You authorize Spoondrift or its third-party payment provider to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Spoondrift, to the payment method specified in your account. If you pay any fees with a credit card, Spoondrift or its third-party payment provider may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.3 Subscription Service. The Service may include automatically recurring payments for periodic charges (“Subscription Service”) based on the data settings that you select in your account. If you activate a Subscription Service, you authorize Spoondrift to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee”, please see the data settings page in your account. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you change or cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may change or cancel the Subscription Service by changing or eliminating your data settings in your account.
4.4 Delinquent Accounts. Spoondrift may suspend or terminate access to the paid portions of the Service for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5.1 Limited License. To the extent that the Service and your Spotter contain or consist of software in any form, and subject to your complete and ongoing compliance with these Terms, Spoondrift grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the software.
5.2 License Restrictions. Except and solely to the extent such a restriction is permissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service, in whole or in part; (b) make modifications to the software or the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Spoondrift an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
5.4 Spotter Data. You hereby grant Spoondrift an unrestricted, perpetual, irrevocable, worldwide, non-exclusive, fully-paid, royalty-free right and license (with right to sublicense) to obtain Spotter Data, and to host, store, transfer, display, perform, reproduce, modify, adapt, and distribute Spotter Data, in whole or in part, in any format and through any channels now known or hereafter developed, and to exploit the Spotter Data in any manner and for any purpose, including to improve the Service and to create other products or services.
6. Ownership; Proprietary Rights. The Service is owned and operated by Spoondrift. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Spotter and of the Service (“Materials”) provided by Spoondrift are protected by intellectual property and other laws. All Materials included in the Spotter and in the Service are the property of Spoondrift or its third party licensors. Except as expressly authorized by Spoondrift, you may not make use of the Materials. Spoondrift reserves all rights to the Materials not granted expressly in these Terms.
7. Third Party Terms
7.1 Third Party Services and Linked Websites. Spoondrift may provide tools through the Service that enable you to export information, including Spotter Data, to third party services, including through features that allow you to link your account on Spoondrift with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Spoondrift may transfer that information to the applicable third party service. Third party services are not under Spoondrift’s control, and Spoondrift is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Spoondrift’s control, and Spoondrift is not responsible for their content.
7.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
8. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
c. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
d. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
e. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
f. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
g. attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
9. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 9, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
10. Term, Termination and Modification of the Service
10.1 Term. These Terms are effective beginning when you accept the Terms or first access, or use the Service, and ending when terminated as described in Section 10.2.
10.2 Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, Spoondrift may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
10.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer have access to your account; (c) you must pay Spoondrift any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.2, 5.3, 5.4, 6, 8, 10.3, 11, 12, 13 and 14 will survive.
10.4 Modification of the Service. Spoondrift reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Spoondrift will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service. In the event that Spoondrift discontinues or limits the Service, any unused portions of fees pre-paid by you will be refunded.
11. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Spoondrift and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Spoondrift Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with: (a) your use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
12. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING THE SPOTTER DATA, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SPOONDRIFT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SPOONDRIFT DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, INCLUDING SPOTTER DATA, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SPOONDRIFT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
EXCEPT FOR THE WARRANTY DESCRIBED IN THE TERMS OF SALE RELATING TO YOUR PURCHASE OF A SPOTTER DEVICE, NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SPOONDRIFT ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE SPOONDRIFT ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND/OR YOUR USE OF MATERIALS OR OF SPOTTER DATA. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING SPOTTER DATA.
HOWEVER, SPOONDRIFT DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT SPOONDRIFT IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SPOONDRIFT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, INCLUDING SPOTTER DATA, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SPOONDRIFT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.1 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Spoondrift submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
14.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
14.5 Contact Information. The Service is offered by Spoondrift Technologies, Inc., located at 315 Princeton Avenue, Half Moon Bay, CA 94019. You may contact us by sending correspondence to that address or by emailing us at email@example.com.
14.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.