Terms of Service
Effective Date: January 2, 2020
These Terms of Service (the “Terms”) are a legal agreement between you and Ember Technologies, Inc. and its affiliates and subsidiaries as may change from time to time (collectively, “Ember,” “we,” “us,” and “our”). These Terms apply to the Ember website (https://ember.com), Ember app, Ember internet-connected products (e.g., mugs or accessories), and the services available through and connected to them (collectively, the “Services”). We may also, in the future, offer new Services and/or features. Such new Services and/or features shall also be subject to these Terms.
IMPORTANT NOTICE: IF YOU ARE A UNITED STATES RESIDENT, DISPUTES ABOUT THESE TERMS AND THE EMBER SERVICES ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE "MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR RESIDENTS OF THE UNITED STATES" SECTION BELOW.
You acknowledge and agree that, by accessing or using any part of the Services or by uploading or posting any User Content (as defined below) in connection with the Services, you, your heirs, and assigns (collectively "you") are indicating that you have read, understand, and agree to be bound by these Terms and to comply with all applicable laws and regulations, including applicable export and re-export control laws and regulations. If you do not agree to these Terms, then you must stop accessing or using the Services.
We may revise these Terms to reflect changes to the Services, our users’ needs, our business priorities, or changes in laws and regulations. We will give you notice of such revisions in accordance with legal requirements. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.
INFORMATION ABOUT US
The Services that link to these Terms are controlled and operated by Ember, and our mailing address is 4607 Lakeview Canyon Rd., #500, Westlake Village, CA, 91361, in the United States of America. For more information about contacting us, please see the “Contact Us” section below.
ELIGIBILITY AND SCOPE
To use the Services you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction, or, if you have parental consent, 13 years of age) and able to agree to these Terms. 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 (in which case, the references to "you" and "your" in these Terms, except for in this sentence, refer to that organization or entity). If Ember has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
ACCOUNT REGISTRATION AND USE
3.1 Account Registration and Confidentiality. You may be required to create an account to use parts of the Services. If so, during the registration process, you must select a password and provide us with additional information. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your account and password. We may assume that any communications we receive under your account have been made by you.
3.2 Unauthorized Account Use. You are responsible for notifying us if you become aware of any unauthorized use of or access to your account. To contact us, please see the “Contact Us” section below. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Ember will not be liable for any loss, damages, liability, expenses, or lawyers’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses, and lawyers’ fees incurred by Ember or a third party due to someone else using your account.
OUR PROPRIETARY RIGHTS
The Services are owned and operated by Ember and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks, and services marks) that are derived in whole or in part from materials supplied by Ember and its partners, as well as certain third parties, and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws.
You agree to abide by all applicable copyright and other laws. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Ember and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of Ember and such others.
You agree to protect the proprietary rights of Ember and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by Ember or its suppliers and licensors (collectively, “Suppliers”) regarding content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify Ember immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights.
All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services, shall, as between you and Ember, at all times be and remain the sole and exclusive property of Ember. Any unauthorized use of any material contained on or through the Services may violate copyright laws, trademark laws, the laws of privacy, and publicity.
USER CONTENT AND SUBMISSIONS
5.1 User Content and Posts. The Services may enable you to submit, post, upload, or otherwise make available (collectively, "Post") content such as reviews, ratings, pictures, and other content such as videos, questions, comments, ideas, designs, features, plans, and other feedback (collectively, "User Content") that may or may not be viewable by other users.
Ember does not provide any compensation, in either cash or product, for User Content submitted to Ember, including without limitation any potential product or software ideas or applications. If you still submit such information to us you agree that such information shall be deemed to be non-confidential and nonproprietary, and Ember shall have no obligation of any kind with respect to such information and shall be free to reproduce, use, disclose, and distribute the information on an unrestricted basis for any purpose whatsoever, unless expressly agreed otherwise in writing by Ember. Further, Ember shall be free to use any ideas, concepts, know-how, or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products incorporating such information.
5.3 User Content Representations. You acknowledge and agree that all User Content that you Post is your sole responsibility. You represent that you have all required rights to Post or transmit such User Content without violation of any third-party rights. You understand that Ember does not control, and is not responsible for, User Content, and that by using the Services, you may be exposed to User Content from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content may contain typographical errors, other inadvertent errors, or inaccuracies. You agree that you will indemnify, defend, and hold harmless Ember for all claims resulting from User Content you Post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
5.4 User Content Review. You acknowledge and agree that Ember and its designees may or may not, at Ember's discretion, pre-screen User Content before its appearance on the Services (but does not assume any obligation to). You further acknowledge and agree that Ember reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit, or remove any User Content that is contributed to the Services. Additionally, Ember has the right to remove any User Content that violates these Terms or is otherwise objectionable in Ember's sole discretion. You acknowledge and agree that Ember does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
LICENSE AND PROHIBITED CONDUCT
6.2 Prohibited Uses. Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
- post User Content that: (1) harasses, abuses, or threatens any other person, or that contains obscene content; (2) is false, misleading, or inaccurate; (3) degrades or discriminates against others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability, or any other classification; (4) is indecent, offensive, harassing, violent, hateful, inflammatory, unlawful, harmful, tortious, defamatory, libelous, or invasive of another's privacy; (5) promotes sexually explicit or pornographic material, violence, or any illegal acts; (6) infringes the legal rights of any person or contains any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms; or (7) gives the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case;
- use the Services commercially;
- use the Services for benchmarking, or to compile information for a product or service;
- copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, “mirror,” duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms, or with the prior written consent of Ember;
- scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any API provided or approved by Ember;
- breach the restrictions in any robot exclusion headers of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;
- post material that advocates illegal activity or discusses illegal activities with the intent to commit them;
- post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy, harm, or limit the functionality of any computer software or hardware or telecommunications equipment (including without limitation any time bomb, virus, malware, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, "disabling," "lock out," "metering" device, or any malicious code);
- post or do anything that could disable, overburden, or impair the proper working of the Services;
- post material that impedes or otherwise prohibits communication or disrupts user discussion;
- post, utilize, or otherwise make available any other party's intellectual property unless you have the right to do so, or remove or alter any copyright, trademark, or other proprietary notice contained on the Services;
- post any trade secrets or other confidential information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;
- falsely state or otherwise misrepresent your affiliation with a person or entity, or impersonate any person or entity in a manner that does not constitute parody, including use of a false email address;
- solicit personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
- send spam, commercial electronic messages or other advertisements or solicitations, surveys, contents, pyramid schemes, promote commercial entities, or otherwise engage in commercial activity on or through the Services;
- frame, inline link, or similarly display the Services or any portion of the Services;
- breach these Terms, or any guidelines or policies posted by Ember;
- interfere with any other party’s use and enjoyment of the Services.
If you are acquiring software (including the related documentation) on behalf of any part of the United States Government, the following provisions apply: the software is deemed to be "commercial software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 FAR 12.212, as applicable.
EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages such as set forth below in Section 10. Accordingly, some of the below limitations may not apply to you. If you are a New Jersey resident, or a resident of another U.S. state that permits the exclusion of these warranties and liabilities, then the limitations in Section 10 specifically do apply to you.
WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ITS CONTENTS, WHETHER PROVIDED BY EMBER, ITS LICENSORS, ITS VENDORS, OR ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES, ARE PROVIDED "AS IS" WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED, LEGAL, OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED. SPECIFICALLY, BUT WITHOUT LIMITATION, EMBER DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THE SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES (INCLUDING, BUT NOT LIMITED TO, MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF CONTENT) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES CANNOT BE SUBJECT TO UNAUTHORIZED ACCESS TO CONTENT OR DATA.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EMBER OR ITS AFFILIATES, LICENSORS, VENDORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICES, OR ANY LINK PROVIDED ON THE SERVICES, WHETHER OR NOT EMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), CIVIL LIABILITY, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100.
EMBER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICES, AND EMBER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. EMBER WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
If you are a California resident, you hereby waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This release includes the criminal acts of others.
THIRD-PARTY LINKS AND SERVICES
The Services may provide (1) information and content provided by third parties; and (2) links to third-party websites or resources. Ember is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Ember shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
MODIFICATION AND TERMINATION
13.1 Modification of Services. Ember reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. Ember shall not be liable to you or any third party for any modification, suspension, or discontinuance of the Services. We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
13.2 Termination. We may, in our sole and absolute discretion, terminate, suspend, or otherwise deny your access to all or part of the Services at any time for any or no reason at all, with or without notice to you. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, and as applicable, the Mandatory Arbitration and Class Action Waiver provisions. Termination of your account may also include, at Ember's sole discretion, the deletion of your account and/or User Content, and you will not be able to retrieve any information related to your account except as required by applicable law. If we terminate your right to access the Services, you will remain liable for all amounts due up to and including the date of termination.
NOTICE OF INTELLECTUAL PROPERTY INFRINGEMENT
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is the policy of Ember, in appropriate circumstances, to terminate the registration account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Services, please provide substantially the following information to our Copyright Agent (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of your copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material you claim is infringing is located on the Services (providing us with website URL is the quickest way to help us locate content quickly);
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Ember’s copyright agent can be reached as follows:
Ember Technologies, Inc.
c/o ZwillGen PLLC
Attn: Ember Copyright Agent
1900 M Street NW, 2ndFloor
Washington, DC 20036
Please note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT OUR COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS. For other inquiries or questions, please email us using the contact information listed below. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
MANDATORY ARBITRATION AND CLASS ACTION WAIVER FOR RESIDENTS OF THE UNITED STATES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
15.1 Application. You and Ember agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 15 is intended to be interpreted broadly and governs any and all disputes between us including, but not limited to, claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
15.2. Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at Ember Technologies, Inc., Attn: Office of the General Counsel, 4607 Lakeview Canyon Rd., #500, Westlake Village, CA 91361,and provide a brief, written description of the dispute and your contact information. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Ember, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
15.3 Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 15.7 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties' relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
15.4 Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including, but not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall be required to issue a written, well-reasoned opinion that shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You explicitly agree that the arbitrator shall not have the power to commit errors of law or legal reasoning, and any award issued containing any such error may be vacated or corrected on appeal to a Los Angeles County, California court of competent jurisdiction.
15.5 Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) Send one copy of the Demand for Arbitration to us at: Ember Technologies, Inc., Attn: Office of the General Counsel, 4607 Lakeview Canyon Rd., #500, Westlake Village, CA 91361.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Ember will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Ember will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Los Angeles County, California, United States, and you and Ember agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
15.6 Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND EMBER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
15.7 Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
15.8 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to Ember Technologies, Inc., Attn: Office of the General Counsel, 4607 Lakeview Canyon Rd., #500, Westlake Village, CA 91361 with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of (a) the Effective Date of these Terms; or (b) your first date that you used the Services that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Ember also will not be bound by them.
15.9 Changes to This Section. Ember will provide thirty (30) days' notice of any changes in accordance with applicable legal requirements. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
15.10 Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
Please note that these Terms and their subject matter and its formation shall be construed in accordance with and governed by the laws of the State of California notwithstanding its conflicts of law principles. However, if you are a consumer and resident of a country in Latin American you may benefit from any mandatory provisions of, and legal rights available to you under, the laws of that country. Nothing in these Terms affects your rights as a consumer to rely on any such local law mandatory provisions and legal rights.
Any dispute arising out of these terms and conditions or the use of this site shall be initiated and conducted in the state or federal courts of Los Angeles County, California, and you and Ember consent to the exclusive jurisdiction of such courts.
17.1 Force Majeure. Under no circumstances shall Ember or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
17.2 No Waiver. If we fail to insist that you perform any obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived such rights and will not mean that you do not have to comply with your obligations. If we do waive a failure or breach by you, we will only do so in writing and that will not mean that we automatically waive any future failure of breach by you.
17.3 Severability. Each of the provisions of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining provisions will remain in full force and effect.
17.4 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
17.5 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and Ember, and supersede any prior agreements between you and Ember on the subject matter, except as expressly provided herein. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Ember without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Ember. No agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect. Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.
17.6 Notices. We may deliver notice to you by email, posting a notice on the Services or any other method we choose, and such notice will be effective on dispatch. If you give notice to us, it will be effective when received by mail at Ember Technologies, Inc., 4607 Lakeview Canyon Rd., #500, Westlake Village, CA 91361, in the United States of America.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.
Ember Technologies, Inc.
4607 Lakeview Canyon Rd., #500
Westlake Village, CA 91361