Last Modified September 14, 2018
Thanks for using Vermeer. The Vermeer mobile application, including any associated software (the “App”) is provided by AeroCine Ventures, Inc., d/b/a Aerobo (“Aerobo” “we” or “us”), located at 253 36th Street, Suite 316B, Brooklyn, NY 11232, United States.
THESE TERMS INCLUDE: (1) AN ARBITRATION PROVISION; (2) A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US; AND (3) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICE.
1. ACCOUNT Registration
1.1 Eligibility. In order to register and create an account (“Account”) for the Service, you must be capable of forming a binding contract, and not be barred from receiving the Service under the laws of the United States or other applicable jurisdiction. If you are under 18, you may only use the Service under the supervision of a parent or legal guardian who agrees to be bound by these Terms.
1.3 Protecting Your Account. It is your responsibility to protect your Account by maintaining the confidentiality and security of your Account username and password; so don’t reveal that information to anyone else or reuse your Account password on third-party applications. You are responsible for all activities that occur on or through your Account, and you agree to immediately notify us of any suspected or actual security breach of your Account. We are not responsible for any losses or damages arising out of the unauthorized use of your Account.
2. Your Use of the Service
2.1 License Grant. Subject to these Terms, Aerobo hereby grants you a limited, non-exclusive, non-transferable license to access and use the Service and download and install the App solely on devices that you own or control, in each case, during the term of these Terms solely for your own personal, non-commercial purposes. The limited rights granted to you to access and use the Service and the App comprise a limited license and do not constitute the sale of any software program.
2.2 Restrictions. You agree that you will not (and not allow anyone else to) (i) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the Service or any portion of the Service, (ii) sell, rent, assign, distribute, sublicense, grant a security interest in, or otherwise transfer any right in or access to the Service or any content, software or services available on or through the Service, (iii) interfere with or disrupt the operation of the Service, (iv) collect or harvest personally identifiable information from the Service (e.g., other users’ Account information), (v) make the Service available over a network or other environment permitting access or use by multiple mobile devices at a time, or (vi) use the Service for data mining, scraping, crawling or data aggregating or to access the Service through any automated means including, without limitation, using a robot, spider or scraper.
2.3 Ownership. The Service contains proprietary information and material that is owned by Aerobo and/or our licensors, and is protected by applicable intellectual property laws. You agree that you will not use any of our proprietary information or materials except in connection with the use of the Service as permitted by these Terms. Using the Service does not give you ownership of any intellectual property rights in the Service or any content, products, data or services you access via the Service, and we reserve any and all rights not expressly granted to you pursuant to these Terms. You agree to not remove, obscure, or alter any legal notices displayed in or along with the Service. Aerobo, the Aerobo logo and other Aerobo trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of Aerobo in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. Nothing in these Terms grants you any right or license with respect to any trademarks.
2.4 Lawful Use of the Service. When using the Service, you will not use the Service for any illegal, unauthorized, unintended, unsafe, hazardous, or unlawful purposes, or in any manner inconsistent with these Terms.
2.5 Third Party Data Fees. The Service requires an internet or data connection and any charges or fees associated with any such connection are solely your responsibility, as set forth in the agreement between you and your internet or data connection service provider.
2.6 Notifications. You understand and agree that the Service may include certain communications from us (e.g., service announcements, administrative messages and other information and alerts), and that these communications are required to use the Service and you will not be able to opt-out of receiving them while using the Service.
2.7 Feedback. In the event that you provide us with any suggestions, comments, ideas, corrections, improvements, feedback or other information about the Service (collectively, “Feedback”), you hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicenseable, royalty free, fully paid-up right and license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative works from such Feedback in connection with any product or service or for any other purpose, without any obligations to you or restrictions of any kind.
2.9 Mobile Software from Google Play Store. If you acquire the App from Google, Inc. or one of its affiliates (“Google”) via Google Play or its successor(s), then to the extent of any conflict between the Google Terms of Service and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”), and the other terms and conditions in these agreements, the Google Play Terms will apply with respect to your use of any App that you acquire from Google Play. Aerobo and you acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Aerobo or you (or any other user) under these Terms or the Google Play Terms.
TERMS AND CONDITIONS
AEROBO and Beta User agree that the reality drone navigation software developed by AEROBO (the “Program(s)”) consist of a test version or versions of one or more products prepared and released solely for experimental use, which may have defects or deficiencies which cannot or will not be corrected by AEROBO. AEROBO would like to test these Program(s) under conditions likely to be encountered in actual customer use. Beta User would like to use these Program(s) prior to their becoming generally available in the marketplace. AEROBO and Beta User believe that it would be mutually beneficial to install these Program(s) for testing, analysis, and evaluation under the conditions of Beta User’s business and environment. The schedule for delivery of an initial beta Program(s) release and each beta Program(s) refresh will be determined by AEROBO, in its sole discretion, and Beta User shall download and install the initial beta Program(s) release and each beta Program(s) refresh within two business days after notification of their availability by AEROBO.
I. Grant of License
Beta User is hereby granted the nonexclusive and temporary right to use the Program(s) for evaluation purposes only. Beta User may use the Program(s) only for evaluation and testing and not for general production use. If and when the Program(s) become commercially available any use of the Program(s) will be governed by the Terms. The rights granted herein are personal, nontransferable and nonassignable.
II. Term and Termination
The license grant provided in Section I shall be for a trial period not to exceed 60 days (the “Trial Period”). At the end of the Trial Period, Beta User will discontinue all use of the Program(s), return all media to AEROBO, if any, and provide AEROBO with certification that all copies of the Program(s), whether partial or complete, have been returned to AEROBO and/or deleted from any Beta User storage media.
III. Exclusion of Warranty; Limitations of Liability
Beta User recognizes that the Program(s) consist of a test version or versions of one or more Program(s) prepared and released solely for experimental use, and that the Program(s) may have defects or deficiencies which cannot or will not be corrected by AEROBO. AEROBO IS DELIVERING THE PROGRAM(S) TO BETA USER “AS IS,” AND AEROBO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF NON-INFRINGEMENT. AEROBO SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFIT), ARISING FROM ANY CAUSE UNDER OR RELATED TO ANY BETA USE OF THE PROGRAM(S). In no event shall AEROBO’s liability for any damages hereunder exceed the amounts received by AEROBO as a result of this transaction.
IV. Protection of Programs; Confidential Information
By virtue of any beta use of the Program(s) Agreement, AEROBO and Beta User may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall be limited to the Program(s), any and all communications related to the beta trial and/or the Program(s), whether or not marked as confidential, and all information clearly marked as confidential. A party’s Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party without access to the Confidential Information of the other party. Results of benchmark tests run by Beta User may not be disclosed unless AEROBO consents to such disclosure in writing. AEROBO and Beta User agree, both during the Trial Period and for a period of seven (7) years after termination of this Agreement and of all licenses granted hereunder, to hold each other’s Confidential Information in confidence. AEROBO and Beta User agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of these Beta Term of Use. Beta User shall limit access to the Program(s) to its employees and agents whose responsibilities require such access, and Beta User shall adopt reasonable measures to assure that its employees and agents will make no disclosure of the Program(s) to other persons or legal entities. Such employees shall be notified by Beta User that any disclosure of Confidential Information under this Agreement is made in confidence and shall be kept in confidence, and shall be subject to a binding agreement with Beta User to protect the confidentiality of Confidential Information. Beta User shall be responsible for any use or disclosure of Confidential Information by any of its employees or agents, and shall protect the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as Beta User uses to protect its own Confidential Information. Beta User agrees to treat the Program(s) as a valuable asset of AEROBO and Beta User agrees that the Program(s) code shall not be used for any purpose other than to assist in the normal use of the Program(s) as defined in the Program(s) documentation. In particular, but without limitation, Beta User agrees that it will not decompile, disassemble, or attempt in any way to reverse engineer the Program(s) or to develop a competing product based on the Program(s). Beta User shall report bugs in the Program(s) to AEROBO within one business day of discovery and, at AEROBO’s request, shall assist AEROBO in duplicating and identifying said bugs. In addition, Beta User shall promptly provide AEROBO with Beta User’s feedback regarding the Program(s), including without limitation usability, documentation and performance. Beta User hereby acknowledges that any and all data developed during a beta test or evaluation hereunder is expendable, at AEROBO’s sole discretion, and that AEROBO makes no commitments whatsoever to migrate or convert any such data from a beta environment to a production environment. Beta User hereby acknowledges that AEROBO retains all title, copyright, patents, and other proprietary information rights in and to the Program(s). Further, any modifications, extensions, simplifications, or enhancements to the Program(s) suggested, conceived of, designed, prototyped or implemented by AEROBO or Beta User in the Beta test period shall become the exclusive property of AEROBO. AEROBO shall have the sole and exclusive right to register copyright of such materials in its own name in any and all countries, to obtain renewals, and to manufacture, reproduce, publish, distribute and sell the same.
Beta User will not transfer the Program(s) received hereunder to any country prohibited from obtaining such data or product by the U.S. Department of Commerce Export Administration Regulations without first obtaining a validated export license. The provisions of this Agreement are necessary for the protection of the business and goodwill of AEROBO and are considered by the parties to be reasonable for such purpose. Beta User agrees that any breach of this Agreement may cause AEROBO substantial and irreparable damages and, therefore, in the event of any such breach or threatened breach, in addition to other remedies which may be available, AEROBO shall have the right to specific performance and other injunctive and equitable relief, it being acknowledged that legal remedies are inadequate. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. This Agreement shall be governed by the laws of the State of New York, without reference to its choice of law provisions, and shall be deemed to be executed under seal in Brooklyn, New York, USA. The parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in the State of New York, USA.
4. Third Party Content and Services
4.1 General. You acknowledge that the Service may permit access to products, services, web-sites, advertisements, promotions, recommendations, advice, information, and materials created and provided by advertisers, publishers, content partners, marketing agents, vendors and other third parties (“Third Party Content and Services”).
4.2 Disclaimer. You acknowledge that we do not investigate, monitor, represent or endorse the Third Party Content and Services (including any third party websites or data available through the Service). Furthermore, your access to and use of the Third Party Content and Services is at your sole discretion and risk, and Aerobo and its affiliates, partners, suppliers and licensors will have no liability to you arising out of or in connection with your access to and use of the Third Party Content and Services.
4.3 Endorsements. You acknowledge and agree that the provision of access to and the listing of any Third Party Content and Services available through the Service or the sharing of any information with third parties will not constitute or imply any endorsement by Aerobo or our affiliates of such Third Party Content and Services. We reserve the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Service, although we have no obligation to restrict or deny access even if requested by you.
5.1 Termination by You. You may terminate these Terms at any time for any reason by notifying us at [email protected] or by uninstalling the App from your mobile device.
5.2 Termination by Aerobo. We may block or suspend your access to the Service or terminate these Terms and the rights afforded to you hereunder with or without prior notice, at any time, if you fail to comply with these Terms or for any reason whatsoever. We reserve the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and we will not be liable to you or to any third party should we exercise those rights. Upon termination of these Terms, you must stop using the Service and uninstall the App from your mobile device.
6. Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SERVICE AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THROUGH THE SERVICE ARE AT YOUR SOLE RISK AND DISCRETION. AEROBO AND OUR AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE SERVICE AND THIRD PARTY CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE SERVICE MAY CONTAIN ERRORS OR INACCURACIES THAT COULD CAUSE FAILURES, CORRUPTION OR LOSS OF DATA AND/OR INFORMATION FROM YOUR MOBILE DEVICE AND FROM PERIPHERALS CONNECTED TO YOUR MOBILE DEVICE. YOU SHOULD BACK UP ALL DATA AND INFORMATION ON YOUR MOBILE DEVICE AND ANY PERIPHERALS PRIOR TO USING THE SERVICE. TO THE EXTENT PERMITTED BY LAW, AEROBO WILL HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE SERVICE.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL AEROBO OR OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, PARTNERS, SUPPLIERS, AGENTS, CONTRACTORS, SERVICE PROVIDERS AND/OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS, USE OF OR INABILITY TO ACCESS OR USE THE SERVICE OR ANY THIRD PARTY CONTENT AND SERVICES, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU WILL, TO THE EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND AND HOLD HARMLESS AEROBO AND OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, PARTNERS, SUPPLIERS, AGENTS, CONTRACTORS AND LICENSORS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES (THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY CLAIM, PROCEEDING, LOSS, DAMAGE, FINE, PENALTY, INTEREST AND EXPENSE (INCLUDING, WITHOUT LIMITATION, REASONABLE FEES FOR ATTORNEYS AND OTHER PROFESSIONAL ADVISORS) ARISING OUT OF OR IN CONNECTION WITH THE FOLLOWING: (I) YOUR ACCESS TO OR USE OF THE SERVICE OR ANY THIRD PARTY CONTENT AND SERVICES; (II) YOUR BREACH OF THESE TERMS; OR (III) YOUR VIOLATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR OTHER RIGHTS.
9. Dispute Resolution
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
9.1 Informal Process First. You agree that in the event of any dispute between you and Aerobo, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to arbitration under these Terms.
9.2 Binding Arbitration. Any dispute or claim that remains unresolved after the informal dispute resolution described in Section 9.1, except for disputes relating to the infringement of our intellectual property rights or the access or use of the Service in violation of these Terms (a “Claim”), will be resolved by binding arbitration, rather than in court, provided that you may assert Claims in small claims court located in Kings County, New York if your Claims qualify.
9.3 No Judge or Jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
9.4 Arbitrator and Rules. The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes. These rules can be found on the AAA website at www.adr.org.
9.5 Starting an Arbitration. To begin an arbitration proceeding, you must send us a notice of dispute, in writing, setting forth your name, address and contact information, the facts of the dispute and relief requested. You must send your notice of legal dispute to us at the following address: 253 36th Street, Suite 316B Brooklyn, NY 11232, United States. We will send any notice of dispute to you at the contact information we have for you.
9.6 Format of Proceedings. The arbitration will be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions.
9.7 Fees. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. Unless the arbitrator finds the arbitration was frivolous or brought for an improper purpose, we will pay all other AAA and arbitrator’s fees and expenses.
9.8 Individual Basis; Jury Trial Waiver. To the fullest extent permitted by applicable law, you and Aerobo each agree that any proceeding to resolve a Claim will be conducted only in the respective party’s individual capacity and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action (“Class Action”). If for any reason a Claim proceeds in court rather than in arbitration, you and Aerobo each waive any right to a jury trial. You and Aerobo expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
9.9 Limitation Period. In no event will any Claim or any other action or proceeding by you (including arbitration under this Section 9) be instituted more than one (1) year after the cause of action arose.
9.10 Enforcement. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The United Nations Conventions on Contracts for the International Sale of Goods will have no applicability.
9.11 Invalidity. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and Aerobo each agree to the exclusive jurisdiction of the Federal and State courts located in New York, New York, and you and Aerobo each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.
9.12 Opting Out. If you do not want to arbitrate disputes with us and you are an individual, you may opt out of this arbitration agreement by sending an email to [email protected] within thirty (30) days of the first of the date you access or use the Service.
10.1 Governing Law. These Terms are governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law principles. These Terms are not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
10.2 Contact Information and Notification. Please direct any questions, complaints or claims related to these Terms or your use of the Service to [email protected] We may notify you with respect to the Service by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by posting a message on the Service. Notices will become effective immediately.
10.3 Severability. If any provision of these Terms is held to be invalid or unenforceable with respect to a party, the remainder of these Terms, or the application of such provision to persons other than those to whom it is held invalid or unenforceable will not be affected and each remaining provision of these Terms will be valid and enforceable to the fullest extent permitted by law.
10. 4 Waiver. Except as provided herein, the failure to exercise a right or require performance of an obligation under these Terms will not affect a party’s ability to exercise such right or require such performance at any time thereafter nor will the waiver of a breach constitute waiver of any subsequent breach. We will not be responsible for failures to fulfill any obligations due to causes beyond our control.
10.5 Export Control. You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction(s) in which the Service was obtained.
10.6 Modification or Amendment. We may modify or amend these Terms at any time, and indicate the date of last modification at the top of these Terms. If we make any material changes, we will use commercially reasonable efforts to notify you of such changes. Your continued use of the Service following the effective date of any modifications or amendments to these Terms indicates your acceptance of the changes.
10.7 Survival. The following sections will survive the termination of this Terms: 2.3, 2.7, 6, 7, 8, 9 and 10.
10.8 Third Party Beneficiaries. Except as set forth in Section 2.8 and 8, nothing contained in these Terms is intended or will be construed to confer upon any person (other than you and Aerobo) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.
10.9 Entire Agreement. These Terms constitute the entire agreement with respect to the use of the Service and supersedes all prior or contemporaneous understandings regarding such subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate services, Third Party Content and Services, or third-party software.
10.10 Reservation of Rights. We reserve the right to take steps we believe are reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms. You agree that we have the right, without liability to you, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Aerobo believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms (including but not limited to our right to cooperate with any legal process relating to your use of the Service and/or a third-party claim that your use of the Service is unlawful and/or infringes such third party’s rights).
Copyright 2018 AeroCine Ventures, Inc., d/b/a Aerobo. All rights reserved.