WYZE TERMS OF SERVICE
Updated: October 17, 2018
Wyze Labs, Inc. and its affiliates (collectively, “Wyze”, “we” or “us”) provide (1) smart home products, such as the Wyze Cam wireless home cameras (“Wyze Cam”) and associated products (collectively, the “Products” ), (2) the websites located at www.wyze.com and www.wyzecam.com, and all associated web pages, websites and corresponding social media pages of Wyze (collectively, the “Site”), (3) mobile application software to access, use and administer your Wyze Cam and other Products and provide associated services which may be downloaded to your smartphone, tablet or other mobile device (the “Wyze App”), and (4) various services accessed or used through the Wyze App or the Site involving uses, administration and functionalities of the Wyze Cam and other Products, Product systems and related matters (the “Wyze Cam Services”). The Wyze Cam Services, the Wyze App and the Site are collectively referred to below as the “Services”.
THE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND WYZE. BY ACCESSING, PURCHASING OR USING ANY WYZE PRODUCTS OR SERVICES (INCLUDING THE SITE, THE WYZE APP AND THE WYZE SERVICES), YOU ACCEPT AND AGREE TO BE BOUND BY THE AGREEMENT.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO BE BOUND BY THE AGREEMENT AND THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OF RESIDENCE TO USE, PURCHASE AND ACCESS THE SERVICES AND PRODUCTS AND TO ENTER INTO THIS AGREEMENT. PLEASE READ THE AGREEMENT CAREFULLY. THE TERM “YOU”, AS USED IN THE AGREEMENT, MEANS ANY PERSON OR ENTITY WHO ACCESSES OR USES OR PURCHASES THE SERVICES OR PRODUCTS AND ANY PERSON OR ENTITY WHO CREATES AN ACCOUNT WITH WYZE FOR THE SERVICES (OR IS AUTHORIZED TO USE YOUR ACCOUNT OR IS ACTING ON YOUR BEHALF) OR OTHERWISE ACCEPTS THE AGREEMENT. IF APPLICABLE, “YOU” ALSO REFERS TO ANY PARENT OR GUARDIAN WHO ACCEPTS THE AGREEMENT ON YOUR BEHALF. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THE AGREEMENT, YOU SHOULD NOT ACCESS, PURCHASE OR USE ANY OF OUR PRODUCTS OR SERVICES NOR OPEN AN ACCOUNT WITH US.
Please take note of a few things about the Agreement that we want to point out to you up front:
- THE AGREEMENT REQUIRES MANDATORY, BINDING ARBITRATION TO RESOLVE DISPUTES BETWEEN US RATHER THAN JURY TRIALS OR GROUP LITIGATION. PLEASE FOLLOW THE INSTRUCTIONS IN SECTION 13 BELOW WITHIN THE STATED TIME FRAMES IF YOU WISH TO OPT OUT OF THIS PROVISION. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.
- THE PRODUCTS AND SERVICES ARE NOT INTENDED FOR USE AS SECURITY OR LIFE SAFETY DEVICES OR SERVICES (SUCH AS A BURGLAR ALARM OR MONITORING SYSTEM). PLEASE DO NOT RELY ON THE PRODUCTS AND SERVICES FOR ANY SUCH CRITICAL USES. PLEASE READ THE DISCLOSURES ABOUT THIS IN SECTIONS 3.B AND 3.C BELOW AS YOU ARE ACKNOWLEDGING AND ACCEPTING THEM.
- You must use the Products and Services in compliance with all applicable laws, including those regarding the making and sharing of video recordings. When and where legally required, you are responsible under Section 1.d. for obtaining any required consents and providing any required notices before you record anything using our Products or Services.
- Do not rely on Wyze or our Products or Services store your video or other content. You are strongly advised to separately and independently download to your smartphone or other device any video or other content that you wish to retain. See Section 6 below for further details.
- We may change the Agreement from time to time as described in Section 11. If you continue to use the any of our Products or Services after a change, then you have accepted the new Agreement.
- USE OF WYZE PRODUCTS AND SERVICES
(a) Access and Use. Subject to the Agreement, Wyze grants you a non-exclusive, non-transferable, non-sublicenseable right to access and use the Services and any software embedded in the Product (and to download, install and run the Wyze App solely on your personal mobile device) for the purpose of operating, monitoring and otherwise utilizing Products which you own or are authorized to control and for purposes of accessing associated functionality, information and services available through our Site and the Wyze App. Your use of the Wyze App is subject to the relevant terms and conditions of the application store from where you downloaded the Wyze App, such as Apple’s App Store, Google Play or similar sources of mobile applications (each an “App Store”). In order to download, install and run the Wyze App, you must have one of the supported mobile devices with a supported version of the applicable operating system thereon. The Wyze App (and any other software in the Products or Services) is provided to you under the limited license above and is not sold to you.
(b) Eligibility. You must be at least 16 years of age or older to purchase or operate any Products, to sign-up or register for a Wyze account, or to install or use, the Wyze App or other Services. If you are under 16 years of age, do not use, purchase or sign up for any Products or Services. If you are under the age of 18, you represent and warrant that you are either an emancipated minor or else possess legal parental or guardian consent to use, purchase and sign up for the Products and Services and also that you will only use the Services and Products under the supervision of a parent or legal guardian who agrees to be bound by the Agreement on your behalf. In general, you may not use, purchase or sign up for the Services and Products if you were previously prohibited by Wyze from using the Services or Products.
(c) Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (i) you agree not to reverse engineer, disassemble, decompile, modify, or create derivative works of or based on the Wyze App or any other part of (including any software contained in) the Products or Services; (ii) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services or Products; (iii) you agree not to access the Services or Products in order to build a similar or competitive service or product; (iv) except as expressly stated herein or as applicable law otherwise requires, no part of the Services or Products may be copied, reproduced, displayed, posted or transmitted in any form or by any means; (v) you agree not to upload, transmit or distribute any computer viruses, worms, malware or any other software intended to damage or alter any software, data, computer, device or communications network in connection with your use of or access to any Products or Services; (vi) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the Products or Services or the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services or Products by means other than through the interfaces that is provided by Wyze; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services or Products. You shall immediately notify us upon learning of any violation of the restrictions or limitations specified in the Agreement.
(d) Use in Compliance with Law; Recording and Privacy. You shall comply with all applicable laws, rules and regulations in your use of the Products and Services. Without limiting the generality of the foregoing, you shall comply with all laws regarding video and audio recording when using the Products, as well as surveillance, eavesdropping and other applicable privacy laws. Wyze Products and Services are primarily intended for purely personal and household use. Nonetheless, data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. For example, laws in some jurisdictions limit the recording or sharing of video or audio content that includes third parties or public spaces, or require notice to third parties, or the explicit consent of third parties, with respect to such recording or sharing. You and not Wyze are solely responsible for complying with any such laws, if applicable, and for providing any notices and/or obtaining any required consents in connection with your use of the Products and Services and in connection with any of your recordings, content or communications.
(e) Automatic Software Updates. Wyze may, in its sole discretion from time to time, provide updates, patches, fixes and other modifications to the Product, Wyze App or other parts of the Services (collectively “Updates”), but has no obligation to do so. Any Update shall be fully subject to the Agreement. Updates may be automatically installed without providing any additional notice or obtaining any additional consent. You consent to these automatic updates. If you do not want such Updates, your remedy is to terminate your Account with us and stop using the Services and the Products; otherwise, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Wyze App or other parts of the Services and Products and, when applicable, you agree to promptly install any Updates that Wyze makes available to you.
(f) Wyze Cam and other Product Set-Up and Installation. You acknowledge and agree that the Product is a do-it-yourself product, and you are solely responsible for decisions related to the installation and use of the Product, including, but not limited to, the proper installation of the Product, selection of the location for the Product, confirmation that the Product is properly installed, deactivation of any Product sensor to arm the Wyze Cam or other Product systems, making a profile of Product sensors to arm the Wyze Cam or other Product systems which includes both activated and deactivated Product sensors, testing the Product, and ensuring that the Product is working. You acknowledge and agree that you are not relying on Wyze to install, repair, maintain, or monitor the Product, and agree and acknowledge that Wyze cannot, and does not, ensure that the Product is installed or used correctly or in compliance with any applicable laws. It is solely your obligation to advise Wyze if there is an issue with the Product, and you, without limiting other releases in this Agreement, hereby release Wyze from any damages, losses or expenses resulting from or as a consequence of issues related to the installation or use of the Product.
(g) System Requirements. The Services will not be accessible without: (i) a working Wi-Fi network that is positioned to communicate reliably with the Products; (ii) an account with Wyze; (iii) an enabled and supported wireless device with the Wyze App installed, such as a phone or tablet (required for some features and functionalities of the Service); (iv) for some features and functionality, always-on broadband Internet access with bandwidth sufficient to support the Products you use; and (v) other system elements that may be specified by Wyze, as and if applicable. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Products and Services. In addition, you acknowledge that Wyze may activate Bluetooth on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with Products connected to the same Wyze account and enable certain features. In the event of any service interruptions to your home’s Wi-Fi network or internet connection, or to your mobile, telephone and other network connections with respect to the Wyze App, the Services and/or certain features and functionalities may be unreliable or unavailable for the duration of such interruption. Because you are solely responsible for ensuring proper connections and transmissions of data with respect to the Products and Services, we are not responsible for any such interruptions and any resulting failures of the Products or Services to function or be available.
(h) Open Source Software. Certain items of independent, third-party code may be utilized in connection with the Wyze Apps, the Products or other parts of the Services that may be subject to the GNU General Public License (“GPL” and/or “LGPL”), the MPL license, the EPL license and/or other open-source licenses (“Open-Source Software”). The Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Nothing in the Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Open-Source Software. In particular, nothing in the Agreement restricts your right to copy, modify and distribute such Open-Source Software, if any, that is subject to the terms of the GPL or LGPL (or EPL or MPL). Please see Open Source Terms for more information regarding the Open Source Software utilized in connection with our Products and Services.
(a) Your Account. To use certain Services and Products, you must register or sign up for a user account with Wyze (“Account”) and provide certain information about yourself, as prompted by the applicable sign up screen or registration form. You represent and warrant that: (a) all required registration and Account information that you submit is truthful, current and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services and Products will not violate any United States or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). In some cases you may sign-up, register or access and login to your Account for the Services through Facebook, Google or similar third party services, in which case you hereby authorize Wyze to access and interface with your Facebook, Google or other third party account, as applicable, and any associated information provided in connection therewith. If any material information you provided to us in connection with your Account changes, you agree to promptly update your Account information so that it is current. You are entirely responsible for maintaining the confidentiality of your Account login information (e.g., user name and password) and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. You agree not to allow or authorize any other individual or entity to use your Account or user ID with Wyze. You agree to immediately notify Wyze of any unauthorized use or suspected unauthorized use of your Account, or any related breach of security. Wyze is not liable for any loss or damage arising from your failure to comply with the above requirements.
(b) Suspension or Termination of Account. Wyze may suspend or terminate your Account and/or access to the Services at any time upon becoming aware of any violation or threatened violation of the Agreement, any security or other threat to our systems, technology, business or to other people, or other matters warranting such suspension or termination.
(c) Accounts with Third Party Providers. In order to enable the functionality of our smart home Products, you acknowledge that you will be required to register or sign up for an account with third-party providers that provide key functionality that allows our Products to work together. Section 4 addresses your account with these third-party providers.
- LIMITED WARRANTY AND DISCLAIMERS
(a) Limited Warranty. Wyze offers a limited warranty for certain Products in accordance with the terms of its published limited warranty and returns policy (the “Limited Warranty”) posted on the Site at https://www.wyzecam.com/return-warranty-policy/. All warranty claims are subject to the terms of this Limited Warranty and no other warranties are provided for any Products or Services, whether express or implied.
(b) Intended Use of Wyze Products and Services. Our Products and Services are intended to be accessed and used for non-critical, personal uses and not for safety, security or time-sensitive purposes. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Products and Services are subject to sporadic interruptions and failures for a variety of reasons beyond Wyze’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that Wyze is not responsible for any damages allegedly caused by the failure or delay of the Services or Products.
(c) No Life Safety, Security or Critical Uses of the Products and Services. YOU AGREE THAT YOU WILL NOT RELY ON THE PRODUCTS OR SERVICES FOR ANY LIFE SAFETY, SECURITY OR CRITICAL PURPOSES. Our Products and Services are not intended to be, nor should be relied upon to serve as, a security, safety or alarm system or for any life or health-critical applications or protection of property. You acknowledge and agree that the Products and Services are not certified for emergency response and do not offer guaranteed protection against burglary, robbery, theft, property damage, fire, smoke, bodily injury or any other type of emergency or damage. Wyze makes no warranty or representation that use of the Products or Services will affect or increase any level of safety or security. We are not insurers nor is this agreement intended to be an insurance policy or a substitute for an insurance policy. You are solely responsible for determining your insurance needs, and purchasing any necessary insurance. You agree to look solely and exclusively to your insurer to recover all loss, damage, or expense due to loss and/or damage to your personal property or real property allegedly caused by the Products or Services. You also agree to look solely and exclusively to your insurer in response to any claim for bodily injury, property damage, personal injury, and/or invasion of privacy allegedly caused by or in connection with the Products or Services or the failure of the Products or Services, including any such claims made by or against you. YOU UNDERSTAND AND AGREE THAT WYZE PRODUCTS AND SERVICES ARE NOT A MONITORED EMERGENCY NOTIFICATION OR SECURITY SYSTEM AND THAT WYZE, THE SERVICES AND THE PRODUCTS DO NOT PROVIDE ANY MONITORING SERVICES. FURTHER, YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL WYZE DISPATCH EMERGENCY SERVICES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. YOU ALSO ACKNOWLEDGE THAT ANY NOTIFICATIONS SENT THROUGH THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A MONITORED EMERGENCY-NOTIFICATION SYSTEM. You are solely responsible for responding to any applicable messages, alerts, signals or notifications provided or transmitted in or through the Products or Services, including the responsibility for contacting any authorities in connection with any of the foregoing. Furthermore, you acknowledge that the Products and Services may not notify you or provide any signals, alerts or messages in cases where applicable Product sensors are deactivated or where the functionality, availability or accessibility of the Services are impaired for reasons discussed in other parts of this Section 3 or any other cause.
(d) Service Interruptions and Failures; No Refund, Credits or Rebate. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund, credits or rebate, or any other compensation, for such suspensions. Wyze does not offer any specific uptime guarantee for the Services. You acknowledge and agree that the Products and Services are subject to unavailability, compromise or failure for reasons outside the control of Wyze or any of its distributors, including, for example but not limited due to: (a) your misuse of the Product or violation of the Agreement; (b) the ability of an intruder to gain access through a protected or unprotected opening; (c) an intruder’s technical sophistication enabling the intruder to bypass individual sensors or the entire system; (d) signals sent by the Product may be blocked or reflected before being received; (e) a motion sensor’s ability to detect an intrusion is limited to the designed ranges and unobstructed areas, and can be interfered with by other infrared signals; (f) deactivation of a Product sensor(s) to arm the Wyze Cam and other Product systems; (g) the Product’s need for continued AC power; and (h) the malfunction of routers, limited or interrupted services by wireless phone carriers, internet service providers and other related service providers, internet connection dropout, limited speed of high-speed internet, and limited service from messaging services or other types of push notification provided by smartphone maker(s) or providers.
(e) Customer Support. If you have any questions or concerns regarding the Products, the Services or the Agreement, please contact Wyze at firstname.lastname@example.org or visit https://support.wyzecam.com. Customer Support is subject to availability of applicable Wyze personnel and Wyze’s standard support practices and procedures and is limited to responding to inquiries sent through standard email and other established Wyze communication channels. Wyze does not provide any commitments or guarantees as to response times or as to when or whether problems or concerns can be resolved or addressed. You understand and agree that any customer service and support offered and provided by Wyze is not an emergency or 911 service or a dispatch center, an emergency service provider or dispatch service, or a lifesaving solution for people at risk in their home or otherwise. PLEASE DO NOT CONTACT CUSTOMER SERVICE OR SUPPORT OFFERED BY WYZE WITH ANY LIFE/SAFETY OR SECURITY EMERGENCY, MEDICAL EMERGENCY, OR ANY OTHER EMERGENCY. IF YOU HAVE ANY SUCH EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, 911 OR APPROPRIATE EMERGENCY RESPONSE SERVICE.
(f) Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY FOR PRODUCTS SPECIFIED ABOVE, THE PRODUCTS AND ALL SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WYZE, AND OUR LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIOR COURSE OF DEALING, USAGE OF TRADE, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING:
(i) WYZE, AND OUR LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WYZE OR THOUGH THE SERVICES, SHALL CREATE OR BE SUBJECT TO ANY WARRANTY.
(ii) WYZE MAKES NO REPRESENTATIONS IF WARRANTIES CONCERNING ANY INFORMATION OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WYZE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. WYZE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
Some jurisdictions do not allow or limit the exclusion of certain warranties, so the disclaimers and limitations above may not apply to you to the extent applicable law so requires.
- THIRD PARTY SERVICES AND PRODUCTS
(c) App Stores. You acknowledge and agree that the availability of the Wyze Apps is dependent on the third-party App Stores from which you download the Wyze App. You acknowledge that the Agreement is between you and Wyze and not with an App Store. Each App Store has its own terms and conditions to which you must agree before downloading Wyze Apps from it. You agree to comply with such App Store terms and conditions, and your license to use the Wyze Apps is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than or otherwise conflict with the terms and conditions of the Agreement, the more restrictive of the conflicting terms and conditions applies.
(d) Third-Party Website Links and Referrals. The Sites and the Wyze App may contain links to other websites operated by third parties and referrals to third-party vendors. Such third party sites and vendors are not under our control. Wyze provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such third party sites and vendors. Your use of these third party sites and vendors is at your own risk.
(e) Release Regarding Third Parties and Your Product Use. Wyze is not responsible for third parties or their products and services, including, without limitation, the App Stores, third party products and services, third party sites and vendors, third party equipment providers, and internet service providers and mobile operators. Wyze hereby disclaims, and you hereby discharge, waive and release Wyze and its licensors and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. Furthermore you hereby release Wyze from any loss, damage, and/or expense which may occur as a result of your use, misuse, or attempted use, of the product, including, but not limited to, the failure of the product to perform and you failure to comply with this Agreement. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING RELEASES, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
(f) Disclaimer. WYZE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE PRODUCTS OR SERVICES, OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WYZE WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
- PAYMENT TERMS, ORDERING AND PURCHASING
(a) Product Purchases. Our Products may be purchased through our Site and from any other authorized channels and sources at the listed prices. Payment must be made in advance for ordered Products and no Product will be sold or shipped to you until paid in full. Prices for the Products do not include shipping costs or sales taxes (or other applicable taxes or duties). Our delivery charges and methods are as described on the Site from time to time. Any estimated arrival or delivery date provided to you is an estimate and not a guaranteed delivery date for your Product order. Product returns must be made in accordance with the Limited Warranty and refunds shall only be made in accordance with such Limited Warranty. Except to the extent specified in the Limited Warranty, all payment obligations for Products are non-cancelable and all Product payments are non-refundable and non-creditable. The following additional terms apply to all Product orders and purchases:
(i) All Product purchases on the Wyze.com site are intended for end users only, and are not authorized for resale. Title and risk or loss for a Product purchased on the Wyze.com site transfers to the purchaser when the shipping carrier receives the Products from Wyze.
(ii) Our Products have been designed, marketed and sold for use by residents of the United States. All safety warnings, information, instructions, packaging, in-box materials, mobile apps, and support services are provided only in English. Support in certain other languages may be available from Wyze upon request. . The Products are not intended for use outside of the United States. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined. We are not liable or responsible if you violate any such laws.
(iii) Your order and purchase of Products is subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Products and/or Services without prior notice. Prices for the Products are subject to change at any time, but changes will not affect any order for Products you have already placed.
(b) Service Fees and Other Fees. Although many Services are provided by Wyze without charge, some Services may be provided for a fee, either now or in the future. When you select or use Services subject to a fee, you shall pay the applicable fees in connection with such Services in accordance with the amounts and payment terms (including due dates) specified in the applicable Supplemental Terms or, if applicable, on the Site and/or the Wyze App (or other written ordering or purchasing document between you and Wyze). If no timing or due date for a given Service fee is specified, such fee shall be due upon selection or sign up for the applicable Service or, if applicable, within thirty (30) days of our invoice with respect to such fees. Some paid Services may be offered on a subscription basis with fees charged to you upon periodic renewals of such Service absent your termination of such Service prior to the renewal fee becoming due. All fee payment obligations for Services are non-cancelable and all Service fees paid are non-refundable and non-creditable. Wyze may change any or all of its Service fees (or impose new fees) upon notification to you of such changed or new fees (except to the extent the original terms of a selected Service expressly state that fee rates are locked in for some period of time). Such fees shall automatically go into effect upon notification (and become the fees payable hereunder), unless and until you terminate this Agreement and your use and access to the applicable Services within thirty (30) days of such notice of changed or new fees in accordance with the termination provisions below. Your continued use of the applicable Services after notification of changed or new fees (absent termination within such thirty day period) shall constitute your acceptance of such change.
(c) Other Payment Terms. All fees are payable in United States dollars by credit card or any electronic funds transfer system accepted by Wyze. Any Fees that are not received by Wyze by the due date therefor will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable law, whichever is lower, from the date such payment is due until the date paid.
(d) Taxes. You are responsible for paying any sales, use or excise taxes and any import/export duties and tariffs (or any related taxes, levies or duties) imposed on your purchase, license or use of our Products and Services (excluding in any event any taxes on our net income). Wyze calculates and charges any sales or other taxes we are required to collect on your purchases in accordance with applicable laws. If we have the legal obligation to pay or collect other taxes, levies, duties or similar assessments for which you are responsible hereunder, we may add the appropriate amount to amounts charged to and paid by you hereunder.
(e) Credit Card and E-Payment Authorization. If You provide your credit card or electronic payment account information in connection with an order or purchase of Products or Services, you agree that your card or account number and any related billing and payment information that you provide may be shared by Wyze with other companies, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to Wyze and servicing your Account. Wyze may seek pre-authorization of your credit card or other charge account prior to any purchase hereunder to verify the credit card or charge account is valid and/or has the necessary funds or credit to cover your purchase. By providing your credit card or charge account information to us, you authorize us to charge such card or account (and authorize the card issuer or account holder to pay) the Product purchase price or Service fees owed by you hereunder. If you elect to pay by credit card, Wyze reserves the right to add up to a three percent (3%) processing fee to the amounts charged to you hereunder. You agree to keep the credit card (or other charge account) information you submitted to Company accurate and up to date. By providing you credit card or other payment account accepted by Wyze, you represent and warrant that you are authorized to use such credit card or account and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your order or fees owed (including any applicable taxes, shipping and other charges).
(c) No Reliance on Content. All Content that is accessible to you through the Services is provided for your convenience only on an “as is” basis without warranty of any kind. All information and other Content posted on, store in or transmitted through the Services is the sole responsibility of the person from whom (or from whose account) such Content originated and Wyze will not be liable for any errors or omissions in any Content. Wyze cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. In addition, we cannot guarantee the authenticity of any data or information that other users or merchants may provide about themselves. You acknowledge that all Content accessed by you through the Services is used or relied upon by you at your own risk, and you will be solely responsible for any damage or loss to any party resulting from your use of any Content. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability arising from your use or reliance upon any Content through the Services.
(d) Responsibility for Your Content and Actions. You are solely responsible for all Content that you upload, post, email, transmit, provide or otherwise disseminate using, to, or in connection with, the Services. You represent and warrant that you have all rights necessary to do so, in the manner in which you provide such Content and that you have the right to grant the licenses to such Content granted to us in the Agreement. You warrant, represent and agree that you will not provide any Content or otherwise use the Services or Products in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including, without limitation, any employee or representative of Wyze; (v) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program; (vi) jeopardizes the security of your Wyze Account or anyone else’s account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of Content that is not yours; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; (xii) denigrates or disrupts any network capacity or functionality; or (xiii) engages in remote monitoring to provide professional medical care for any individual, including without limitation, in any health care and assisted living environment.
(e) Your Use of Other’s Content. You shall abide by all copyright notices, trademark rules, information and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content that was not created or owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third-party right. You will not, and have not rights to, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit any Wyze Content without our prior written consent.
- OWNERSHIP AND INTELLECTUAL PROPERTY
(a) Wyze Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Products, the Site, the Wyze App and other Services are owned by Wyze or its affiliates or licensors. Your possession, access to and use of the Products and Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Wyze, and its affiliates and licensors and suppliers, reserve all rights not granted in the Agreement and, except as expressly stated herein, no rights or licenses are granted by Wyze, by implication, estoppel or otherwise, in, to or under the Products, Services or any intellectual property rights of Wyze.
(b) Certain Limitations. You may only copy readily accessible parts of the Services (including applicable portions of the Site) onto your own computer for your own personal use. You may not use the Content of the Services (excluding your own Content) in any other public or commercial way, nor may you copy or incorporate any of such Content into any other work, including your own website, without the written consent of Wyze. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to Content provided by you and other users, Wyze (and its affiliates and licensors) retains full and complete title to all Content on the Services, including any downloadable software and all data that accompanies it. You may not modify or in any way reproduce or damage the structure or presentation of the Services, or any Wyze Content or third party Content therein.
(c) Wyze Trademarks. The names and logos associated with Wyze, and its Products and Services are trademarks of Wyze, and may not be copied, imitated or used, in whole or in part, without our prior written permission. In addition, all Wyze custom page headers, graphics, button icons and scripts are service marks, trademarks and/or trade dress of Wyze, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Wyze.
(d) Feedback. You may choose to or Wyze may invite you to submit comments, suggestions or ideas about our Products or Services, including how to improve the Products or Services (“Suggestions”). By submitting or providing any Suggestions, you agree that your submissions are voluntary, gratuitous, unsolicited and without restriction, and will not place Wyze under any fiduciary or other obligation. Wyze may use, copy, modify, publish or redistribute the Suggestions and its contents for any purpose and in any way without any compensation to you. You also agree that Wyze does not waive any rights to use similar or related ideas previously known to Wyze, developed by its employees or obtained from other sources.
- TERM AND TERMINATION
(a) Agreement Term. The Agreement will remain in full force and effect as long as you continue to access or use the Services or Products, unless and until earlier terminated in accordance with the express provisions of the Agreement. Either you or Wyze may terminate the Agreement for convenience at any time, with or without cause, upon thirty (30) days prior written notice to the other party.
(b) Services Termination. At any time, Wyze may (i) suspend or terminate your rights to access or use the Services, and/or (ii) terminate the Agreement with respect to you if Wyze, in good faith, believes that you have used the Services or Products in violation of the Agreement or are otherwise in breach of the Agreement. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates and the new owner will have no right to use the Product or Services under your Account. Such new owner of the Product will need to register for a separate Account with Wyze and separately accept the Agreement before such owner may use the Product and Services. Certain Services subject to separate sign-up, payment or subscription may terminate at the end of the applicable term of such Services if not properly renewed, subject to the applicable Supplemental Terms.
(c) Effect of Termination. Upon termination of the Agreement, your Account and your right to use the Services will automatically terminate and you agree to cease using the Services. After any termination of the Agreement, you understand and acknowledge that we will have no further obligation to provide or allow access to the Services and all licenses and other rights granted to you by this Agreement will immediately cease. Wyze is not liable to you or any third party on account of termination of your use of the Services. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT (INCLUDING ANY VIDEO FOOTAGE) THAT YOU HAVE SUBMITTED, POSTED, UPLOADED, STORED OR OTHERWISE MADE AVAILABLE ON, IN OR THROUGH SERVICES OR UNDER YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU AND CAN BE DELETED BY WYZE (ALTHOUGH WE HAVE NO OBLIGATION TO DO SO, EXCEPT AS REQUIRED BY LAW). Furthermore, except as may be required by applicable law, Wyze will have no obligation to store or maintain (or delete or destroy) any Content or other information stored in our databases related to your Account nor to forward any information or other Content to you or any third party. Termination of your Services or the Agreement shall not relieve you of any obligation that has accrued or existed prior to termination, nor of any obligation to pay any accrued or past-due fees or payments to Wyze.
(d) Survival. The obligations in Sections 3(f), 4(e), 5, 6, 7, 8, 9, 10, 12, 13 and 15 will survive any expiration or termination of the Agreement.
- INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS WYZE, ITS AFFILIATES AND WYZE AND ITS AFFILIATE’S OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “WYZE PARTIES”) FROM AND AGAINST (I) ANY AND ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL PROCEEDING BROUGHT BY ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION ANY GOVERNMENTAL ENTITY) AGAINST ANY OF THE WYZE PARTIES ARISING FROM OR RELATING TO (A) YOUR USE OF THE PRODUCTS OR SERVICES OR ANY USE OF THE PRODUCTS OR SERVICES THROUGH YOUR ACCOUNT; (B) A VIOLATION OF THE AGREEMENT BY YOU OR BY ANYONE YOU ALLOW TO USE YOUR ACCOUNT; (C) ANY CONTENT YOU PROVIDE, RECORD OR STORE IN, WITH OR THROUGH THE PRODUCTS OR SERVICES; OR (D) THE VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY BY YOU OR ANYONE YOU ALLOW TO USE YOUR ACCOUNT (COLLECTIVELY, ”THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, EXPENSES, SETTLEMENTS AND JUDGEMENTS (INCLUDING PAYMENT OF ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE WYZE PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE WYZE PARTIES, OR MADE BY ANY OF THE WYZE PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE WYZE PARTIES, OR GROSS NEGLIGENCE OF THE WYZE PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. Wyze reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Wyze, and you agree to cooperate with our defense of such Third Party Actions. You agree not to settle any Third Party Action without Wyze’s prior written consent. Wyze will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
(b) Restrictions on Use and Disclosure. You shall use diligent efforts to preserve the confidentiality of the Confidential Information. You agree (i) not to use any Confidential Information for any purpose other than to use the Products and Services in accordance with this Agreement and perform your obligations under this Agreement, and (ii) not to disclose any Confidential Information to anyone else.
(c). Exclusions. Notwithstanding the foregoing, you may disclose Confidential Information if you are compelled by law to do so, provided you give us prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if we wish to contest the disclosure. Furthermore, the foregoing restrictions on use and disclosure shall not apply to any information that, as established by reasonable documentation or other reasonable evidence: (i) is or becomes generally known to the public without any breach, act or omission by you, (ii) was known to you prior to its disclosure or availability by or from Wyze as evidenced by contemporaneous documentation, (iii) is rightfully received from a third party without confidentiality restrictions and without breach of any obligation owed to Wyze, or (iv) was independently developed by you without use of or reference to any Confidential Information.
- MODIFICATION OF SERVICES AND AGREEMENT
(a) Modifications to Services. Wyze reserves the right, in its sole discretion, at any time to modify, augment, limit, suspend, discontinue or terminate any of the Services without advance notice. All modifications and additions to the Services shall be governed by the Agreement, unless otherwise expressly stated by Wyze in writing. You agree that Wyze will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof.
(b) Modifications to the Agreement. Company may also modify or amend the Agreement in its sole discretion without advance notice by posting the modifications or amended Agreement on the Site or through the Wyze App (and/or by email notification if we so choose). Material changes to the Agreement will be posted in a prominent place or manner. Please check our Site or the Wyze App to see any updates or changes made to the Agreement. All modified terms and conditions will be effective after they are posted, unless a longer notice period is required by applicable law or unless we indicate in our posting or email notifications to you (if applicable) a specified effective date. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Services, and, if applicable, cancel your Account. IF YOU DO NOT AGREE WITH ANY OF THE CHANGES TO ANY OF THE AGREEMENT, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT AND CEASE ACCESSING OR USING THE SERVICES. By continuing to access or use the Services after Wyze posts any such revision to the Agreement, you agree to be bound by the updated or modified Agreement. The Agreement may not otherwise be modified or amended, except with the written agreement of both parties.
- LIMITATION OF LIABILITY
Nothing in the Agreement and, in particular, within this “Limitation of Liability” clause, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER DISCLAIMERS IN THE AGREEMENT, IN NO EVENT WILL (A) WYZE (OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS OR THE AGREEMENT, EVEN IF WYZE KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) WYZE’S TOTAL CUMULATIVE LIABILITY (AND THE TOTAL LIABILITY OF ANY OF WYZE’S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (A) ABOVE, ARISING FROM OR RELATED TO THE SERVICES OR THE PRODUCTS OR THE AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE GREATER OF (i) FIVE HUNDRED DOLLARS ($500); OR (ii) THE AMOUNTS ACTUALLY PAID BY YOU TO WYZE OR WYZE’S AUTHORIZED RESELLER FOR THE SERVICES AND/OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). WYZE DISCLAIMS ALL LIABILITY OF ANY KIND OF WYZE’S LICENSORS AND SUPPLIERS IN CONNECTION WITH THE PRODUCTS, SERVICES OR THE AGREEMENT. UNDER NO CIRCUMSTANCES WILL WYZE BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 12 SHALL APPLY EVEN IF WYZE IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF WYZE OR GROSS NEGLIGENCE OF WYZE IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
- DISPUTE RESOLUTION AND ARBITRATION/WAIVER OF CLASS ACTION AND JURY TRIAL
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Arbitration. Wyze and you agree to exclusively arbitrate all disputes and claims that arise from or relate to the Agreement or the Services or Products in any way, except for claims arising from bodily injury. THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. This agreement to arbitrate is intended to be broadly interpreted, including, for example:
- claims arising out of or relating to any aspect of the relationship between us that is created by or involves the Agreement or the Services or Products, regardless of the legal theory;
- claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us;
- claims that arose before you accepted the Agreement (such as claims related to disclosures or the marketing of the Services or Products, or the process for seeking approval to use the Services or Products);
- claims that may arise after the termination of your use of the Services or Products or any agreement between us; and
- claims brought by or against our respective subsidiaries, parent companies, members and affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors and assigns of these entities, you, and Wyze.
(b) Exclusions From Arbitration. This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or Wyze may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction.
(c) Wavier of Class Actions and Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE, LAW, YOU UNDERSTAND AND AGREE THAT WE ARE EACH (A) WAIVING THE RIGHT TO A TRIAL BY JURY; (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (C) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER. The Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
(d) Notice of Disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to Wyze should be sent to: Wyze Legal Department, 4030 Lake Washington Boulevard NE Suite 200, Kirkland, Washington 98033, USA (as such address may be updated by notice or posting in accordance with the Agreement). Wyze will send notice to you at the email and/or mailing addresses associated with your Account. Your notice to Wyze must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 30 days after the notice is received, you or we may commence arbitration.
(e) Arbitration Procedures. The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and we agree otherwise, any arbitration hearings may take place in any of Los Angeles, Chicago, Seattle, St Louis, New York City or Miami, whichever is closest to the place where you are receiving Wyze Services (and if Wyze commences the arbitration, Wyze may also choose to do so, in its discretion, in the county (or parish) within the United States where you are receiving Wyze Services), and both parties consent to the applicable jurisdiction and venue for purposes of holding, administering and enforcing such arbitration proceedings. If the value of your claim is USD $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator and by telephone, video or online conferencing (unless the parties mutually agree to an in-person hearing). If the value of your claim exceeds USD $10,000, the right to a hearing will be determined by the AAA Rules provided that the parties may agree to have hearings held by telephone, video or online conferencing . Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider, but is not bound by, rulings in other arbitrations between Wyze and Wyze users. The arbitrator can award the same individualized damages and relief that a court can award. Judgement on the award may be entered by any court having jurisdiction.
(f) Costs of Arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org). Wyze will pay all AAA filing, administrative and arbitrator fees for any arbitration that Wyze commences. Otherwise, payment of all AAA fees shall be governed by the AAA Rules. In cases where the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedures 11(b)), then the arbitrator may direct you to reimburse Wyze for any amounts that Wyze paid with respect to the arbitration.
(g) No Class Arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WYZE 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 GROUP LITIGATION OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or group proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(h) 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 13, you must notify Wyze in writing within 30 days of the date that you first accept the Agreement (unless a longer period is required by applicable law). Your written notification must be mailed to Wyze at the following address: Wyze Legal Department, 4030 Lake Washington Boulevard NE Suite 200, Kirkland, Washington 98033, USA (as such address may be updated by notice or posting in accordance with the Agreement). Subject to Section 13(i) below, if you do not notify Wyze in accordance with this Section 13(h), you agree to be bound by the arbitration and group litigation waiver provisions of the Agreement, including such provisions in of the Agreement revised after the date of your first acceptance.
Such notification must include: (a) your name, (b) your Wyze Account email address, (c) your mailing address and (d) a statement that you do not wish to resolve disputes with Wyze through arbitration. This notification affects the Agreement only; if you previously entered into other arbitration agreements with Wyze or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in the Agreement shall not affect the other arbitration agreements between you and Wyze.
(i) Future Changes to Arbitration Provision. If Wyze makes any changes to the Dispute Resolution and Arbitration Section of the Agreement (other than a change to the address at which Wyze will receive notices of dispute, opt-out notices or rejections of future changes to the Dispute Resolution and Arbitration Section), you may reject any such change by sending us written notice within 30 days of the change to Wyze Legal Department, 4030 Lake Washington Boulevard NE Suite 200, Kirkland, Washington 98033, USA (as such address may be updated by notice or posting in accordance with the Agreement). It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration Section of the Agreement if you had properly opted out of the arbitration and group litigation waiver provisions in this Section 13 within the first 30 days after you first accepted the Agreement. If you have not properly opted out of the arbitration and group litigation waiver provisions in this Section 13, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
- DIGITAL MILLENNIUM COPYRIGHT ACT
(a) Notice of Infringing Content. If you are a copyright owner or an agent thereof and believe that any Content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent (as designated below) with the following information in writing (see 17 U.S.C §512[c] for further details): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number and, if available, an electronic mail; (v) a statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright right that is allegedly infringed.
(b) Copyright Agent. Wyze’s designated Copyright Agent to receive notifications of claimed infringement is Copyright Agent – Attention Wyze Legal Department, 4030 Lake Washington Boulevard NE Suite 200, Kirkland, Washington 98033, USA; copyright@Wyzecam.com; (844) 999-3226. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support and other communications should be directed to Wyze customer service through https://support.wyzecam.com. You acknowledge that if you fail to comply with all the requirements of this Section 14(b), your DMCA notice may not be valid.
(a) Entire Agreement; Severability; Waiver. The Agreement constitutes the entire agreement between you and Wyze with respect to the Products, Services and other subject matter herein, and supersedes any prior agreements, understandings or arrangements between you and Wyze with respect to such subject matter. The section titles in the Agreement are for convenience only and have no legal or contractual effect. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision to the full extent consistent with applicable law (and otherwise severed from the Agreement), and the other provisions of the Agreement shall remain in full force and effect. The failure or delay of Wyze to exercise or enforce any right, remedy or provision of the Agreement shall not constitute a waiver of such right, remedy or provision. All waivers of any terms or conditions in this Agreement must be in writing signed by the waiving party.
(b) Assignment. You may not assign the Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Wyze. Any purported assignment or delegation by you without the appropriate prior written consent of Wyze will be null and void. Wyze may freely assign the Agreement or any rights hereunder without your consent. The Agreement are binding upon any permitted assignee.
(c) Governing Law. This Agreement, the relationship between you and Wyze, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to the Agreement or your use of the Products and Services shall be governed by the laws of the State of Washington, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. Except to the extent subject to arbitration as provided above or otherwise required by applicable law, you agree to submit to the personal jurisdiction of the courts located in King County, Washington, for the purpose of litigating all such claims. Further you agree that you must bring any claim arising out of or related to this Agreement, the Products or Services or the relationship between you and us, within two (2) years after the claim arises, or the claim will be permanently barred.
(d) Independent Contractors. You and Wyze are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
(e) Legal Limitations on Agreement Terms. The Agreement give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action and waiver of punitive damages under the Agreement will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of the Agreement may not apply to you to the extent of such jurisdictions’ legal requirements.
(f) Notifications. Wyze may provide notices to you with respect to this Agreement, the Products or Services, or as required by law, by posting such notices on the Site and/or through the Wyze App and/or by sending them to you via email to the primary email address associated with your Account (if any) and/or to the mobile number or messaging address (if any) you provided to us in connection with your Account. Any such notices shall be deemed properly and timely given to you hereunder. Wyze is not responsible for any automatic filtering that you or your network provider may apply to email or mobile notifications. Wyze recommends adding @wyzecam.com email addresses to your email address book to help ensure that you receive email notifications from Wyze. You consent to the use of: (a) electronic means to complete this Agreement and to provide you with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Products or Services.
(g) Disclosures. Please see https://www.wyzecam.com/contact-us/ for Wyze’s current address. If you are a resident of California, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them, in writing, at 400 R Street, Sacramento, CA 95814, USA, or by telephone on (800) 952-5210.