Last Revised: June 19, 2015
Welcome to Avi-on — the app that allows you to remotely control your lighting, HVAC, and other home systems from Avi-on Labs, LLC (“Avi-on,” “we,” “us” or “our”).
These Terms of Service (“Terms”) apply to your access and use of the mobile application (the “App”), website (“Site”), and other online products and services (collectively, the “Service”) of Avi-on.
Accepting these Terms
BY DOWNLOADING THE APP OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS BELOW. Please read all of the terms before you use the Service. If a term does not make sense to you, please let us know. If you don’t agree to all of the terms below, you may not use the Service.
We reserve the right to change these Terms from time to time. For example, we may need to change these Terms if we come out with a new feature. If we make changes, we will notify you by revising the date at the top of the policy and, in some cases, we will provide you with additional notice (such as adding a statement to our homepage or sending you an email notification). We encourage you to review these Terms periodically to stay informed about our practices.
Whenever we make changes to these Terms, they are effective when the revised Terms are posted unless we notify you otherwise. If you continue to use the Service after the revised Terms have been posted, then you will be deemed to have accepted the changes to these Terms.
Description of the Service
Through the Service, you can remotely control and time certain lighting, HVAC, and other home systems (each, a “Home System”). You must purchase a Home System that is branded with “powered by Avi-on” to make sure you can use the Service. To use the App, your mobile device must have its Bluetooth feature turned on. After you install or have installed a Home System, download the App and connect it to the Home System using the Bluetooth function on your mobile device. From your mobile device, you can then monitor the Home Systems that you connect to the Service.
You are responsible for your use of the App, including making sure that your mobile device has and maintains Bluetooth functionality. You are responsible for installing and maintaining your Home Systems, including any products, accessories and devices.
For more information about the Service, please see our FAQs.
When you create an account you must maintain the security of your password and accept all risk that someone may access your account without your permission. If you discover or suspect any Service security breaches, please let us know as soon as possible. You represent and warrant to us that all information that you provide in connection with your account is accurate, truthful, current and complete. Avi-on reserves the right to deny any account at our discretion.
The pricing terms for your access to and use of the Service are set forth in the Avi-on subscription plan you select. All payments must be made in U.S. Dollars by credit or debit card via an authorized Avi-on payment processor.
Avi-on will charge the credit/debit card provided by you via the Service in advance and in accordance the subscription plan selected by you. Most plans are monthly with subscriptions payable at the beginning of each month.
You hereby authorize Avi-on (or its authorized payment processor) to charge the credit/debit card number provided via the Service by you in accordance with the Avi-on subscription plan selected, and you represent and warrant that you are authorized to use and have fees charged to the credit/debit card number provided to Avi-on. You understand that you may withdraw such authorization by contacting us at 14153159682.
Right to Use the Service
On the condition that you fully comply with these Terms, Avi-on grants you a limited, nonexclusive, non-transferable and revocable license to access and use the Service for your own personal, non-commercial use. However, the App may only be used on mobile devices that you own or control. The terms of this license will also govern any upgrades provided by Avi-on that replace and/or supplement the original App, unless the upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Except as expressly authorized by these Terms, you may not (a) modify, disclose, alter, translate or create derivative works of the Service, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Service, (c) disassemble, decompile or reverse engineer any of the software components of the Service, (d) copy, frame or mirror any part of the Service, (e) interfere with or disrupt the integrity or performance of the Service, or (f) attempt to gain unauthorized access to the Service or its related systems or networks.
Prohibited Use of the Service
You may not post or otherwise make available on or through the Service any of the following:
- Private information of any other persons (including names, email addresses, phone numbers, Social Security numbers and financial information);
- Viruses, corrupted data or other harmful, disruptive or destructive files or code; and/or
- Content that, in Avi-on’s judgment, is objectionable, may restrict or inhibit another from enjoying the Service or may expose Avi-on or users of the Service to harm or liability of any type.
Also, you may not do any of the following in connection with the Service or other users:
- Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service;
- Collect any personal information about other users;
- Use the Service to control any Home System in a home or building that you do not own or are not otherwise authorized to control;
- Intimidate, threaten, stalk, bully or otherwise harass other users;
- Create an account if you are not over 18 years of age;
- Use the Service for any illegal or unauthorized purpose or to engage in, encourage or promote any activity that is unlawful or that violates these Terms; or
- Circumvent or attempt to circumvent any filtering, security measures, rate limits or other features designed to protect the Service, its users, or third parties.
Your use of the Service is at your own risk. Avi-on is not responsible or liable for the conduct of, or your interactions with, any other users (whether online or offline) or for any related damage or harm.
Reporting and Removal
Avi-on users may report content to Avi-on that they think violates these Terms, and Avi-on may remove such content, suspend or terminate the account of the user who posted or otherwise made available such content and/or take additional action to enforce these Terms against such user.
Also, in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Avi-on has adopted a policy of terminating, in appropriate circumstances and at Avi-on’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. Avi-on may also at its sole discretion limit access to the Service or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Service infringes upon any copyright that you own or control, you may file a notification with Avi-on’s Designated Agent as set forth below:
Designated Agent: Eric L Miller
Address of Designated Agent: 2750 Rasmussen Rd., Ste. 206, Park City, UT 84098
Email Address of Designated Agent: firstname.lastname@example.org
Fax Number of Designated Agent: [____________]-Not/Available
Phone number of Designated Agent: 14153159682
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Avi-on or the alleged infringer as the result of Avi-on relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
As between you and Avi-on, all information, materials and content of the Service, including text, graphics, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces, source and object code, format, queries, algorithms and other content is owned by Avi-on or is used with permission. When you create, share, link to, or otherwise make available any information related to your use of the Service, you grant us a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such information throughout the world in any manner or media, on or off the App. Avi-on reserves all rights not expressly set forth in these Terms. You hereby irrevocably waive in favor of Avi-on any and all moral rights that you may possess in or to any information you make publicly available related to your use of the Service.
Any suggestions, comments or other feedback you give us about the Service (the “Feedback”) will constitute our confidential information. We are free to use, disclose, reproduce, license, distribute and exploit this Feedback as we see fit, without compensation to you or any obligation or restriction because of any intellectual property rights or otherwise.
Location Information [NOTE: Does Avi-on collect location information?] -YES
You acknowledge and agree that by accepting these Terms or using the Service you affirmatively consent to Avi-on’s collection, use, disclosure and storage of your location information.
You may revoke your consent with respect to Avi-on’s collection, use, disclosure and storage of your location information at any time by contacting email@example.com and deleting the App from your mobile device. Please know that if you revoke your consent by doing one of the foregoing or you delete or deactivate your account, we may retain certain information as required by law or for legitimate business purposes. We may also retain cached or archived copies of information about you for a certain period.
If you consent to our collection of location information and you do not subsequently stop the collection of this location information, Avi-on will continue to collect this location information.
If you consent to our collection of location information, subsequently stop the collection of this location information and later consent to the collection of this location information, Avi-on will resume the collection of location information.
Avi-on takes reasonable measures to protect your location information from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction.
EXCEPT AS REQUIRED OTHERWISE OF AVI-ON BY APPLICABLE LAW, THE SERVICE AND ANY OTHER SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM AND EXCLUDE ANY AND ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), AND ALL OTHER TERMS WHICH MAY BE IMPLIED INTO THESE TERMS BY LAW, WITH RESPECT TO THE SERVICE AND CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE, AND ANY HOME SYSTEM OR OTHER THIRD PARTY PRODUCT OR HARDWARE, INCLUDING ANY DEVICES, PRODUCTS, OR ACCESSORIES THEREIN. AVI-ON EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE ACTS OR OMISSIONS OF AMAZON WEB SERVICES, INC. (“AWS”) IN PROVIDING ITS AWS SERVICE OFFERINGS, INCLUDING ANY DOWNTIME CAUSED BY AWS OR YOUR INABILITY TO OTHERWISE ACCESS AWS’ SERVICE OFFERINGS.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL AVI-ON BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROPERTY, PHYSICAL LOSSES, DEATH OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE (INCLUDING, THE APP), THE INSTALLATION, MAINTENANCE, ACTION, OR MALFUNCTION OF ANY HOME SYSTEM AND ANY OTHER THIRD PARTY HARDWARE OR PRODUCT, AND/OR THIRD-PARTY SERVICES OR MATERIALS (INCLUDING AWS’ SERVICE OFFERINGS), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF AVI-ON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
FOR ANY LOSS OR DAMAGE THAT IS NOT EXCLUDED UNDER THESE TERMS, THE TOTAL LIABILITY OF AVI-ON AND ITS DIRECTOR, EMPLOYEES, AGENTS, AFFILIATES AND INVESTORS WILL NOT EXCEED THE FEES YOU ACTUALLY PAID TO AVI-ON TO ACCESS AND USE THE SERVICE PRIOR TO THE INCIDENT FROM WHICH THE LOSS OR DAMAGE AROSE.
You will defend, indemnify, and hold us harmless from and against any actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees, costs, penalties, interest, and disbursements) arising from or related to any conduct with respect to the Service or violation (or alleged violation) of these Terms or the rights of any third party by you or any person using your Avi-on account.
Third Party Software
The software you download consists of a package of components, including certain third party software provided under separate third party license terms. Your use of this third party software in conjunction with the App in a manner consistent with the terms of these Terms is permitted, however, you may have broader rights under the applicable third-party license terms, and nothing in these Terms is intended to impose further restrictions on your use of this third-party software. Further, you acknowledge and agrees that you will abide by all of the flow-down terms and conditions applicable to customers of Avi-on, including those of AWS, which may be found here: http://aws.amazon.com/agreement/ (the “AWS Terms”). You are responsible for reviewing these terms, including the acceptable use policy incorporated therein, and for periodically reviewing the AWS Terms and any policies incorporated therein for any changes made by AWS to the AWS Terms. Avi-on is not responsible for notifying you of any changes made to the AWS Terms and will have no liability to you for the AWS Terms and any change made to any of the AWS Terms.
Changes to the Service
Avi-on reserves the right in our discretion to review, improve, change or discontinue, temporarily or permanently, the Service and/or any features, information, materials or content on the Service with or without providing notice to you. Avi-on will not be liable to you or any third party for any changes or discontinuance of the Service or any part of the Service.
Consent to Electronic Communications
By using the Service, you agree that we may communicate with you electronically regarding your use of the Service and that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent from receiving electronic notice, please notify us at firstname.lastname@example.org.
Suspension and Termination
Avi-on may suspend or terminate your rights to access or use the Service (including the App) for any reason or for no reason at all and with or without notice at Avi-on’s discretion. Suspension or termination may include restricting access to and use of the App. All of the terms of these Terms (excluding the license grant) will survive any termination or suspension.
Governing Law; Arbitration
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH AVI-ON AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM AVI-ON.
These Terms shall be governed by and construed in accordance with the laws of the State of Utah and the United States of America, without resort to any conflict of law provisions.
In the event of any controversy or claim arising out of or relating in any way to these Terms or the Service, you and Avi-on agree to consult and negotiate with each other and, recognizing your mutual interests, try to reach a solution satisfactory to both parties. If we do not reach settlement within a period of 60 days, then either of us may, by notice to the other, demand mediation under the mediation rules of the American Arbitration Association in Park City, Utah. We both give up our right to litigate our disputes and may not proceed to arbitration without first trying mediation, but you and Avi-on are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Whether the dispute is heard in arbitration or in court, you and Avi-on will not commence against the other a class action, class arbitration or other representative action or proceeding.
If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Park City, Utah. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
For any disputes that are not handled by arbitration, you agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in the state and federal courts located in Summit County, Utah and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms or the use or the Service.
Enforcement of these Terms is solely at Avi-on’s discretion. Failure to enforce any part of these Terms in some instances does not constitute a waiver of our right to enforce the same or other part of these Terms in other instances. If any provision of these Terms is or becomes unlawful, void or otherwise unenforceable (including the warranty disclaimers and liability limitations above), then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions of these Terms will continue in full force and effect. The section headings of these Terms are for reference purposes only and will not affect the meaning or interpretation of these Terms.
These Terms (and the other policies and terms referred to above) make up the entire agreement between you and us regarding the Service, and they supersede any prior agreements that may have been made.
If you have any questions about these Terms, please email us at email@example.com or send a letter to:
Avi-on Labs, LLC
2750 Rasmussen Rd., Ste. 206
Park City, UT 84098
Notice for California Users
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
NOTICE REGARDING APPLE
Notwithstanding any terms to the contrary in these Terms, the following additional terms will apply to the download of the App for use on the iPhone, iPod Touch or iPad:
You and Avi-on acknowledge that the terms are solely between you and Avi-on, and not with Apple, Inc. (“Apple”), and that Avi-on, not Apple, is solely responsible for the Service, the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App, e.g., the Apple iPhone App Store (“App Store”). You agree to pay all fees charged by the App Store in connection with the App (if any). You further acknowledge that the usage rules for the App are subject to any additional restrictions set forth in the Usage Rules for the Apple App Store Terms of Service (“Apple Usage Rules”) as of the date you download the App. In the event of any conflict between the terms and conditions of the Apple Usage Rules and the terms and conditions of these Terms, the terms and conditions of the Apple Usage Rules will govern if they are more restrictive.
Scope of License
The license granted to you is limited to a non-transferable license to use the App on any iPhone, iPod Touch or iPad that you own or control as permitted by the Apple Usage Rules.
Maintenance and Support
Avi-on is solely responsible for providing maintenance and support services with respect to the App. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
You acknowledge and agree that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App.
In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the App by you, and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. You also acknowledge and agree that to the extent that there are any applicable warranties, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty, such will be the sole responsibility of Avi-on. However, you understand and agree that, in accordance with these Terms, Avi-on has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App, except those implied by law.
You and Avi-on acknowledge and agree that as between Apple and Avi-on, Avi-on, not Apple, is responsible for addressing any of your claims or any third party claims relating to the App or your possession and/or use of the App, including, but not limited to (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
Intellectual Property Rights
You and Avi-on acknowledge and agree that, in the event of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Avi-on, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address
Any end-user questions, complaints or claims with respect to the App should be directed to:
Avi-on Labs, LLC
2750 Rasmussen Rd., Ste. 206
Park City, UT 84098
Third Party Beneficiary
The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce any of the terms and conditions of these Terms against you as a third-party beneficiary thereof. However, the right of Avi-on to terminate, rescind or make any change to these Terms is not subject to the consent of any other person.