SMARTTHINGS TRACKER TERMS OF SERVICE
IMPORTANT - PLEASE READ CAREFULLY BEFORE USING THE SERVICE (DEFINED BELOW). THESE TERMS OF SERVICE (“TOS”) ARE A LEGAL AGREEMENT BETWEEN YOU AND SAMSUNG ELECTRONICS CO., LTD. (“SAMSUNG”) FOR THE SMARTTHINGS TRACKER SERVICE AND ANY RELEVANT SOFTWARE OR DOCUMENTATION THEREOF (COLLECTIVELY, THE “SERVICE”) PROVIDED BY SAMSUNG, ITS AFFILIATES, ITS THIRD PARTY SUPPLIERS, AND/OR LICENSORS.
BY INSTALLING OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS, INCLUDING THE ARBITRATION AGREEMENT, SET FORTH AT SECTION 14, BELOW. IF YOU DO NOT AGREE TO THE TOS, DO NOT INSTALL OR USE THE SERVICE. IF THESE TOS CHANGE AND YOU CONTINUE TO USE THE SERVICE OR FAIL TO UNINSTALL THE SERVICE FOLLOWING ANY SUCH CHANGE, YOU AGREE TO BE BOUND BY THE TOS. IF YOU DO NOT AGREE TO THE TOS CHANGE, YOU MUST STOP USING THE SERVICE.
a. The SERVICE enables users to check the location of a SmartThings Tracker device (“Tracker”).
b. To use the SERVICE, you need to have a Samsung Account (“Account”) and install the “SmartThings” application (“Application”) in your smartphone or tablet (“Device”), and accept the terms and Conditions provided therewith. Your use of the SERVICE is also subject to such terms and condition. In the event of any conflict between these TOS and such terms and conditions, these TOS will prevail with respect to the SERVICE and your use thereof.
c. To use this SERVICE, you may need to purchase an applicable data plan from relevant carriers or service providers. Your Tracker’s network service is solely managed by the carrier independently of the SERVICE, and governed by the applicable terms and conditions of your carrier or service provider. Your carrier or service provider may charge data fees when your Tracker accesses its network.
d. You bear sole responsibility for, including any liability that may arise out of, or in relation to your use of SERVICE and the subject of whose location you track with the SERVICE. You must comply with all applicable laws in connection with your use of the SERVICE and shall not participate in any illegal activities including violating others’ rights. In the event that the location of other person is tracked via the SERVICE, you must clearly inform such other person in advance of the fact that his or her location is tracked, obtain such other person’s consent (in case of a Minor, defined below, consent of a parent or legal guardian), and use the SERVICE soley to track such person. In the event you invite other users to gain access to the location of another person via the SERVICE, you must also inform such other person of the list of people who can track his or her location via the SERVICE, and obtain such person’s prior consent (in case of a Minor, prior consent of a parent or legal guardian).
e. Location data provided by the SERVICE may be erroneous, inaccurate, incomplete or time-delayed. The SERVICE is not intended and must not be used, for emergency or life saving purposes or in any other situations where incorrect location data or other failure of the SERVICE may result in person’s death, bodily injury, property damage or any other similar harm. SAMSUNG shall not be responsible for any unavailability of the SERVICE resulting from the network service provided by your carrier.
f. The services and features provided by the SERVICE or Update (defined below) thereto may vary or be limited depending on certain factors, including, without limitation, your location, Device model, operating system, or network operator.
g. If you are under the age of 18, you are not permitted to enter into these TOS or use the SERVICE unless your parent or legal guardian understands and consents to the terms and conditions of these TOS. If you are a parent or legal guardian permitting a person under the age of 18 ("Minor") to use the SERVICE, you agree to: (i) supervise the Minor's use of the SERVICE; (ii) assume all risks associated with the Minor’s use of the SERVICE, (iii) assume any liability resulting from the Minor’s use of the SERVICE; (iv) ensure the accuracy and truthfulness of all information submitted by the Minor or, if required by the laws of your jurisdiction, submit all required information truthfully and accurately on behalf by the Minor; and (v) assume responsibility and agree to be bound by these TOS for the Minor’s access and use of the SERVICE.
2. Grant of License
Subject to the terms and conditions of these TOS, you are granted a limited, non-exclusive, and revocable license to install, access and use the SERVICE.
3. Reservation of Rights and Ownership
This SERVICE includes software and data provided by third parties. You acknowledge that the SERVICE is proprietary to Samsung and its licensors, and protected under applicable copyright and other intellectual property laws and treaties. These TOS and your use of the SERVICE do not grant you any ownership interest in or to the SERVICE, and you are granted only a limited license to use the SERVICE that is revocable in accordance with the terms of these TOS. You may not use the SERVICE to reproduce copyrighted materials, or materials you do not have the right or legal approval for reproduction.
Except for private and non-commercial use, none of the contents of the SERVICE may be copied, reproduced, distributed, republished, downloaded, displayed, posted electronically or mechanically, transmitted, recorded, in any manner, photocopied or reproduced without prior written consent of Samsung or its partner. Any other use of the SERVICE, including any commercial use, modification, distribution or republication without prior written consent of Samsung is strictly prohibited.
Except to the extent that mandatory local law requires that you be able to do so, you may not (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of the SERVICE; (ii) modify or disable any features of the SERVICE; (iii) create derivative works based on the SERVICE; (iv) rent, lease, lend, sublicense or provide commercial hosting services with the SERVICE; (v) infringe our intellectual property rights or those of any third party in relation to your use of the SERVICE (to the extent that such use is not licensed by these TOS); (vi) use the SERVICE in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these TOS, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the SERVICE or any operating system; (vii) use the SERVICE in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; (viii) collect or harvest any information or data from the SERVICE or our systems or attempt to decipher any transmissions to or from the servers running the SERVICE, (ix) disobey any technology control or export laws and regulations that apply to the technology used or supported by the SERVICE; or (x) harass, threaten or harm any other person.
5. Update, Change or Suspension of the SERVICE
Samsung may, at any time, provide or make available updates or upgrades to the SERVICE (“Updates”), including without limitation bug fixes, service enhancements, new features, deletion of existing functions, or modification of the SERVICE. Updates will be governed by these TOS unless separate terms and conditions are provided with such Updates, in which case those separate terms and conditions shall govern the Updates. Updates for security software or critical bug fixes or other important Updates may be automatically downloaded and installed given the importance of receiving such Updates in a timely manner to help protect you and other users.
Samsung expressly reserves the right to change, suspend, remove, limit the use of or disable the access to the SERVICE or any portion thereof at any time without notice or liability.
Without limiting the generality of the foregoing, if you do not use this SERVICE for more than one year, your SERVICE will be suspended automatically and your user data will also be deleted. In such event, you will be required to sign up again to use the SERVICE.
6. Third Party Services and Content
7. Internet Access
Some features of the SERVICE may require your DEVICE to have access to the internet and may be subject to restrictions imposed by your network or internet provider. The SERVICE may access the internet through your mobile network, which may result in additional charges depending on your payment plan according to carriers or service providers. In addition, your enjoyment of some features of the SERVICE may be affected by the suitability and performance of your Device hardware or data access.
8. Compliance with Law
You agree to comply with any and all applicable laws and regulations in using the SERVICE, including, without limitation, all applicable export restriction laws and regulations.
These TOS are effective until terminated. You can terminate these TOS by ceasing your use of the SERVICE and uninstalling, deleting and returning all related software, documentations and other materials provided by Samsung, including backup copies thereof. Should you not comply with these TOS, your rights based on these TOS will be automatically terminated without notice from Samsung. Upon either your or Samsung’s termination of these TOS, you must immediately cease all use of the SERVICE. For the purpose of clarity, Samsung may terminate at any time these TOS and the SERVICE with notice to you (e.g., service website, pop-up through application, or email).
10. Standard Limited Warranty and Disclaimer of Warranty
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT ADDITIONAL WARRANTIES OF ANY KIND FROM SAMSUNG, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAMSUNG DISCLAIMS ALL WARRANTIES OR OTHER TERMS EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, QUIET ENJOYMENT, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SAMSUNG OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY SAMSUNG OF WARRANTY REGARDING THE SERVICE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM SAMSUNG. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. SAMSUNG DOES NOT GUARANTEE OR WARRANT THAT ANY INFORMATION, DATA OR CONTENT YOU MAY TRANSFER, STORE OR ACCESS THROUGH USE OF THE SERVICE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, CORRUPTION, LOSS, OR REMOVAL, AND SAMSUNG SHALL NOT BE RESPONSIBLE SHOULD SUCH DAMAGE, CORRUPTION, LOSS, OR REMOVAL OCCUR. IT IS SOLELY YOUR RESPONSIBILITY TO MAINTAIN APPROPRIATE ALTERNATE BACKUP OF YOUR INFORMATION AND DATA.
11. Limitation of Liability
11.1 SAMSUNG WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SERVICE OR ANY RELATED THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND YOU AGREE THAT YOU WILL USE THE SERVICE AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR SOME OTHER TYPES OF LOSS, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, SAMSUNG’S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SERVICE OR RELATED THIRD PARTY APPLICATIONS, SHALL NOT EXCEED THE AMOUNT PURCHASER PAID FOR THE SERVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
11.2 You acknowledge that the above provisions of Section 11.1 are reasonable given the benefits of the SERVICE and you will accept such risk and/or insure accordingly.
The following text only applies if you use the SERVICE as part of your business, trade or profession: You agree to indemnify, defend, and hold harmless Samsung, its affiliates, its contractors, employees, and agents from any claims, losses, damages, liabilities (including legal fees and expenses) arising out of your use of the SERVICE, your violation of the rights of any third party, or any breach of these TOS.
13. Applicable Law
The TOS, including all revisions and amendments thereto, are governed by and construed in accordance with the laws of the State of New York, without regard to its conflict or choice of law principles. The TOS shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Samsung may apply for injunctive remedies (or an equivalent form of urgent legal relief) in any jurisdiction.
14. Arbitration Agreement.
This is a legal agreement (“Agreement”) between you (either an individual or entity) and Samsung. Installing or otherwise using the SERVICE constitutes acceptance of this Agreement, regardless of whether you are the original purchaser, user, or other recipient of the SERVICE.
You and Samsung each agree that, subject to Samsung’s right to apply for injunctive remedies set forth in Section 13 above, all disputes between you and Samsung relating in any way to or arising in any way from the Standard Limited Warranty or the sale, condition or performance of the SERVICE shall be resolved exclusively through final and binding arbitration, and not by a court or jury. Any such dispute shall not be combined or consolidated with a dispute involving any other person’s or entity’s product or claim, and specifically, without limitation of the foregoing, shall not under any circumstances proceed as part of a class action. The arbitration shall be conducted before a single arbitrator, whose award may not exceed, in form or amount, the relief allowed by the applicable law.
The arbitration shall be conducted according to the American Arbitration Association (AAA) Commercial Arbitration Rules applicable to consumer disputes. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. This Agreement is entered into pursuant to the Federal Arbitration Act. The laws of the State of New York, without reference to its choice of law principles, shall govern the interpretation of the Agreement and all disputes that are subject to this Agreement. The arbitrator shall decide all issues of interpretation and application of this Agreement.
For any arbitration in which your total damage claims, exclusive of attorney fees and expert witness fees, are $5,000.00 or less (“Small Claim”), the arbitrator may, if you prevail, award your reasonable attorney fees, expert witness fees and costs as part of any award, but may not grant Samsung its attorney fees, expert witness fees or costs unless it is determined that the claim was brought in bad faith. In a Small Claim case, you shall be required to pay no more than half of the total administrative, facility and arbitrator fees, or $50.00 of such fees, whichever is less, and Samsung shall pay the remainder of such fees. Administrative, facility and arbitrator fees for arbitrations in which your total damage claims, exclusive of attorney fees and expert witness fees, exceed $5,000.00 (“Large Claim”) shall be determined according to AAA rules. In a Large Claim case, the arbitrator may grant to the prevailing party, or apportion among the parties, reasonable attorney fees, expert witness fees and costs to the extent allowed by the applicable law. Judgment may be entered on the arbitrator’s award in any court of competent jurisdiction.
This Agreement also applies to claims against Samsung, including its employees, representatives, parents, and other affiliates, if any such claim relates to or arises from the TOS, Standard Limited Warranty, or the SERVICE’s sale, condition or performance.
You may opt out of this Agreement by providing notice to Samsung no later than 30 calendar days from the date of the first consumer purchaser’s purchase or use of the SERVICE. To opt out, you must send notice by e-mail to email@example.com, with the subject line: “TOS Arbitration Opt Out.” You must include in the opt out e-mail (a) your name and address; (b) the date on which the SERVICE was purchased or first used; (c) the Device model name or model number on which the SERVICE is used; and (d) the IMEI or MEID or Serial Number, as applicable, if you have it (the IMEI or MEID or Serial Number can be found (i) on the Product box; (ii) on the Product information screen, which can be found under “Settings;” (iii) on a label on the back of the Product beneath the battery, if the battery is removable; and (iv) on the outside of the Product if the battery is not removable).
Sections 2, 3, 10, 11, 12, 13 and 14 of these TOS, and any other provision that by its nature should continue to be in effect, shall survive the expiration or earlier termination of these TOS, and shall remain valid and binding.
The headings contained in these TOS are for reference purposes only and shall not affect the meaning or interpretation of these TOS.
17. No Waiver
The failure of SAMSUNG to enforce at any time any of the provisions of these TOS, or the failure by Samsung to require at any time performance by you of any of the provisions of these TOS, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of Samsung to enforce such provision thereafter. The express waiver by Samsung of any provision, condition or requirement of these TOS shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
18. Entire Agreement
These TOS are the entire agreement between you and Samsung relating to the SERVICE and supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the SERVICE or any other subject matter covered by these TOS. If any provision of these TOS is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
19. Electronic Communications
When you use the SERVICE or send email(s) to Samsung, you are communicating electronically. You consent to receive communications from Samsung electronically by way of email or SMS. You agree that all agreements, notices, disclosures and other communications that Samsung provides to you electronically satisfy all legal requirements. In connection with your use of the SERVICES, Samsung may send you SERVICE announcements, administrative messages, and other information.