Legal

Terms of Service
Privacy Policy
Cookie Policy 
Return Policy 
Limited Product Warranty

KLEVERNESS, INC.

TERMS OF SERVICE

Effective: August 5, 2019

Kleverness, Inc., a Delaware corporation (“Kleverness,” “we,” “our,” or “us”) provides:  (i) the websites owned and operated by Kleverness, Inc., a Delaware , including the www.kleverness.com website and domains (the “Site”), (ii) the Kleverness proprietary iOS and Android mobile software applications and online web application (collectively, the “Applications”), (iii) the Kleverness proprietary smart lighting products (the “Products”), and any underlying technology of the Products and any software and/or firmware included or embedded in the Product (collectively, the “Technology”); and (iv) any services that we provide in connection with the Products and Applications (the “Services”).  When we refer to the “Kleverness System” throughout these Terms, we mean the Kleverness smart lighting system, comprised of the Applications, Products, Technology and/or Services.

The term “you” or “your,” as used in these Terms, means any person or entity who accesses or uses the Kleverness System and any person or entity who creates a User Account (as defined in Section 4.1 below) and accepts these Terms, including Administrators and Authorized Users (as each term is defined in Section 4.2 below).

IMPORTANT -- PLEASE READ THESE TERMS OF SERVICE (the “Terms”) carefully.  These Terms set forth the legally binding terms and conditions between you and Kleverness governing your use of the site and/or Kleverness system.  By using or accessing the site and/or Kleverness system in any manner, including, but not limited to, visiting or browsing the Site, purchasing the Products, or downloading or installing the Applications: (i) YOU acknowledge that you have read, understand, and agree to be bound by these Terms, including Kleverness’ Privacy Notice (the “Privacy notice”); (ii) YOU represent that you are eligible to enter into these Terms pursuant to the eligibility requirements set forth below in Section 1; and (iII) YOU agree that you are entering into these Terms (including all of the terms and conditions specified or referenced below, including the Privacy Notice) with Kleverness Incorporated.

PLEASE NOTE, THESE TERMS ALSO CONTAIN AN AGREEMENT TO ARBITRATE WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AS SET FORTH, AND SUBJECT TO, SECTION 19.  IN ADDITION, Please be advised that Kleverness does not provide warranties for the site and/or Kleverness system (except as otherwise expressly stated), and these Terms limit our liability to you. Please see Sections 12, 13, and 16 for further information.  YOU MAY NOT USE THE SITE, purchase the products, OR access or use THE KLEVERNESS SYSTEM IF YOU DO NOT AGREE TO THESE TERMS.

  1. You must be 18 years old or the age of majority in your jurisdiction, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, in order to make a purchase on the Site and to act as an Administrator of a User Account for the Kleverness System.  By purchasing the Products or Services and/or creating and/or acting as an Administrator with respect to the use of the Kleverness System, you affirm that you are over the age of 18 and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms.  If you are an Authorized User, you represent and warrant that you are 16 years of age or older, and if you are between the age of 16 and the age of majority in the jurisdiction where you reside, that you will only use the Site and/or Kleverness System under the supervision of a parent or legal guardian who agrees to be bound by these Terms on your behalf.  Any use or access to the Kleverness System by individuals under the age of 16 is strictly prohibited and is a violation of these Terms.
  2. ADDITIONAL TERMS; MODIFICATIONS TO THESE TERMS
    • Additional Terms. When using particular services or materials through or in connection with the Site and/or Kleverness System, you shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in the terms (“Additional Terms”). All such Additional Terms are hereby incorporated by reference into these Terms.  In the event of any conflict with these Terms and the Additional Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
    • Modifications to these Terms. These Terms will remain in full effect for the time that you continue to use or access the Site and/or Kleverness System or any part thereof or until terminated in accordance with the provisions of these Terms. Kleverness reserves the right to update or modify these Terms, the Privacy Policy, and any Additional Terms at any time. All updates and modifications to these documents will be effective from the day they are posted online (except as otherwise stated in this Section 2.2).  If we make any material changes to these Terms, the Privacy Policy (including, without limitation, in the way that we collect, store, or use data), or the Additional Terms, we will notify you of these changes by sending a notification to the email address we have on file for your User Account, or, if we do not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the Application.  It is your responsibility to regularly visit and review these Terms, the Privacy Policy, and any Additional Terms.  If you do not agree to any updates or modifications to these Terms, the Privacy Policy, or Additional Terms, simply do not use or access the Site and Kleverness System and terminate your User Account. Your continued use of the Site and/or Kleverness after we have posted the Terms, the Privacy Policy, or Additional Terms, or, in the event of material changes, ten (10) days following the date Kleverness first notified you of such material changes either through email or the date we posted the notice of such changes on the Site, signifies to us that you acknowledge and agree to be bound by the revises Terms, Privacy Policy, and/or Additional Terms, as applicable.
  3. Term; Termination. These Terms will remain in full force and effect as long as you continue to access or use the Site and/or Kleverness System (or any part thereof), or until terminated in accordance with the provisions of these Terms. At any time, Kleverness may (i) suspend or terminate your rights to access or use the Site and/or Kleverness System (or any part thereof), or (ii) terminate these Terms with respect to you if Kleverness, in good faith, believes that you have used the Site or Kleverness System (or any part thereof) in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Kleverness System with respect to that Product automatically terminates and the new owner will have no right to use the Kleverness System or the Product under your User Account (as described below) and will need to register for a separate User Account with Kleverness and accept these Terms.  Upon termination of these Terms, your User Account and your right to use the Kleverness System will automatically terminate.
  4. USER ACCOUNTS; ADMINISTRATORS & AUTHORIZED USERS
    • User Accounts. In order to access and use certain features of the Site and/or Kleverness System you must create and register a user account (“User Account”). In registering a User Account, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (i) create a User Account using a false identity or information, (ii) create a User Account or use the Site and/or Kleverness System if you have been previously removed or banned by us from use of the Site or Kleverness System, or any part thereof. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your User Account. You are solely responsible for any activity originating from your User Account, regardless of whether such activity is authorized by you.  You agree to notify us immediately of any unauthorized use of your User Account. Kleverness reserves the right to limit the number of User Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual User Account.
    • Administrators; Inviting Authorized Users. The individual who creates a User Account for the Products purchased by such individual is the owner and administrator of the Products and Services associated with that User Account (the “Administrator”). An Administrator may authorize individuals to access and use an Administrator’s Products and Services (“Authorized Users”) by sending an invite to such Authorized User through the Application.  In addition, an Administration may set certain permissions and access rights to each Authorized User (“Permissions”), and if you are an Administrator, you acknowledge and agree that you are solely responsible and liable for the Permissions granted to your Authorized Users.  If you are an Administrator, you further represent and warrant that each Authorized User invited is eligible to access and use the Kleverness System pursuant to Section 1, and any invitations sent through the Applications will comply with all applicable laws, rules and regulations.  If you are an Administrator, you acknowledge and agree that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Products and Services set forth in Section 4.3 below, and such additional Authorized User will be deemed an Authorized User of your User Account.  As a result, if you are an Administrator, you should only authorize those individuals whom you trust to access your User Account and the Kleverness System.
    • Authorized Users - Permissions. Depending on the Permissions you grant to an, Authorized Users may have the ability to use the Services and monitor and control the Products (for example, an Authorized User can change your lighting schedule or turn your appliances on and off). Authorized Users may also have the ability to view information (including personal information) and content across all of an Administrator’s Products, Services and any Third Party Products and Services (defined below in Section 10) that are connected to the Administrator’s User Account (for example, an Authorized User may receive mobile alerts regarding certain Products and/or usage of the Products and/or Services). Authorized Users are responsible for their own actions in connection with the Products and Services, but the Administrator also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Administrator’s Products, Services and User Account. If you are an Administrator who invites or enables an Authorized User, you acknowledge and agree that said Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Products and Services set out above, depending on the applicable Permissions you grant to such Authorized User, and such additional Authorized User will be deemed an Authorized User of you as the Administrator. As a result, if you are an Administrator, you should only authorize those individuals whom you trust to access your User Account, Products and Services, and you further acknowledge and agree that you are solely responsible and liable for inviting Authorized Users and the Permissions you grant to such Authorized Users.
  5. Access AND USE OF THE SITE AND KLEVERNESS SYSTEM
    • Access to the Site and Kleverness System. Subject to your compliance with these Terms, Kleverness hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited right to: (i) access and use the Site, solely for your non-commercial purposes; (ii) install, execute and use the Applications, in object code only, accessing, monitoring and controlling the Products installed at any property that you own or rent from your own mobile or other computer devices; and (iii) if you have purchased the Products, execute and use the Technology solely to the extent included or embedded (as applicable) with or into the Product purchased by you, and in accordance with any usage limitations provided by Kleverness for the Products. You are solely responsible for restricting access to such computer and/or mobile devices that can monitor and control the Products installed at your property. You acknowledge and agree that in order to use the Applications, you must have a compatible mobile device. You are solely responsible for determining whether or not a mobile device is or is not compatible with the Applications and Kleverness makes no representations or warranties whatsoever regarding the Applications and compatibility with any computer or mobile device. You further acknowledge and agree that you are solely responsible for any fees or charges incurred from use of the Applications through mobile devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.
    • Restrictions. The Kleverness System embodies, contains, and constitutes valuable trade secrets of Kleverness. Accordingly, you agree that you will not, and it will not permit any third party to: (i) modify, adapt, translate or create derivative works based on the Kleverness System (or any part thereof), or any related documentation; or (ii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Applications, Technology or Products, except as expressly permitted by applicable law; or (iii) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Applications, Products, Technology or related documentation, or any related documentation. You agree not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Kleverness or its suppliers on or within the Site, Applications, Products, Technology or related documentation.
    • Prohibited Use. Without limiting the restrictions set forth in Section 5.2 above, you agree that you will not, and it will not permit any third party to: (i) use the Kleverness System or Site to store or transmit malicious code or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (ii) interfere with or disrupt the integrity or performance of the Kleverness System, Applications, Technology, Site or any system, network or data; (iii) attempt to gain unauthorized access to the Site, Applications, Technology or its related systems or networks; (iv) frame or utilize framing techniques to enclose the Site or Applications or any portion thereof; (v) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Site, Applications or Technology, content (except caching or as necessary to view the Site), or the personal information of others without our prior written permission or authorization; (vi) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity; or (vii) violate any applicable local, state, national or international law in your use of the Site and/or Kleverness System.
    • Changes and Modifications. Kleverness reserves the rights to either temporarily or permanently modify, suspend or discontinue the Site and/or Kleverness System (or any part thereof) with or without notice. You agree that Kleverness will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site and/or Kleverness Service (or any part thereof).
  6. ELECTRONIC COMMUNICATIONS. By using the Site and/or Kleverness System, you consent to receiving electronic communications from Kleverness. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to your use of the Site and/or Kleverness System. These electronic communications are part of your relationship with Kleverness and you receive them as part of your purchase. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
  7. User Data and Privacy.You understand and agree that Kleverness may collect data and information, which may include personally identifiable information (“User Data”) in connection with your use of the Site and Kleverness System.  Any personally identifiable information provided or collected through or in connection with the Site and Kleverness System shall only be used in accordance with these Terms and the Privacy Notice. By using the Site and/or Kleverness System and providing User Data you grant to Kleverness a non-exclusive, royalty-free, fully-paid, worldwide license, under all of your intellectual property and proprietary rights, to any and all User Data reasonably necessary for Kleverness to provide you the Site and Kleverness System hereunder.  You represent and warrant that you have all the rights necessary to grant the Kleverness the licenses granted herein in and to you User Data. Notwithstanding the foregoing, you acknowledge and agree that Kleverness may use and exploit any aggregated non-personally identifiable data or information collected or obtained from your use of the Site and/or Kleverness System for any purpose.
  8. PURCHASE AND PAYMENT TERMS FOR THE PRODUCTS
    • Transactions. When you purchase Products and/or Services through the Site (each such purchase, a "Transaction"), you will be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card (and CCV#), your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. By submitting such information, you grant Kleverness the right to provide such information to our third party service providers for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
    • Orders. You agree that by placing an order on the Site, you are entering into a binding contract with Kleverness and agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from the Site. By placing an order, you represent that the Products and Services ordered will be used only in a lawful manner.
    • Order Acceptance; Cancellation. We reserve the right to accept or reject any order in our own discretion. We will only accept or reject an order in its entirety. Should we elect to accept your offer, you will receive a confirming email at the email address that you provide at such time. Notwithstanding, we reserve the right to cancel any order once accepted by us (as evidenced by a confirming email) at any time in our sole discretion. Additionally, you have the option of cancelling your order (in its entirety only) at any time prior to our having sent to you the confirming email referenced herein. Without limiting the foregoing, Kleverness reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any Product; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar any user from making or completing any or all Transaction(s); and (iv) refuse to provide any user with any Product or Service.
    • Delivery; Returns. Products purchased from the Site will be shipped by a third party carrier to the shipping address provided by you in connection with the applicable Transaction. As a result, title and risk of loss for such merchandise will pass to you upon our delivery to (or pick up by) the carrier. Please review our Return Policy for orders placed through the Site for Products.
    • Payment Terms. If you have purchased Products through the Site, you shall pay to Kleverness the fees specified in the electronic or written purchase order submitted by you to Kleverness for such Products, in accordance with the payment terms specified therein. Except as expressly provided otherwise, fees are non-refundable and non-returnable. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on Kleverness’ income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Products, Technology, Applications, or Services, or performance of any services by Kleverness.
  9. Ownership; Feedback
    • Ownership. Kleverness and/or its licensors and suppliers, as applicable, retain all right, title, and interest in and to the Site, Applications, Services, Technology, and any other materials (including related product and/or software documentation) or services provided by Kleverness, and all aspects thereof, including all patents, copyrights, trade secrets, and other intellectual property rights incorporated therein. Kleverness and its licensors and suppliers reserve all rights and licenses not expressly granted to you and no implied licenses or rights are granted by Kleverness. The Technology and Applications are not sold or transferred to you, and Kleverness and its licensors retain ownership of all copies of the Applications even after installation on your personal computers, mobile handsets, tablets, wearable devices, speakers and/or other devices.
    • Feedback. You acknowledge that any ideas, inventions, suggestions for improvement or discussions submitted by you regarding any aspect of the Site and/or Kleverness System, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (“Feedback”) that are not already subject to third party intellectual property rights may be used by Kleverness or any other user of the Service without compensation or attribution, and you hereby grant Kleverness, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all intellectual property rights in the Feedback for any purpose.
  10. Third Party Links and Websites. The Site and/or Applications may contain links to, or otherwise may allow you to purchase and/or connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Third Party Products and Services”). For example, we may make links available to third party providers of light bulb products that work with the Kleverness System, or you may be able to connect your IoT devices with the Kleverness System. If you decide to access and use such Third Party Products and Services, be advised that your use is governed solely by the terms and conditions of such Third Party Products and Services, and Kleverness does not endorse, is not responsible for, and make no representations as to such Third Party Products and Services, their content or the manner in which they handle your data. Kleverness is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Third Party Products and Services, or your reliance on the privacy practices or other policies of such Third Party Products and Services.
  11. Indemnification.You agree to indemnify and hold harmless Kleverness, its subsidiaries, affiliates, partners and suppliers and each of their respective officers, directors, employees, shareholders, legal representatives, agents, successors and assigns, from and against any damages, liabilities, costs and expenses (including reasonable attorneys' and professionals' fees and litigation costs) that arise out of any violation of these Terms of Service by you.
  12. LIMITED WARRANTY; DISCLAIMER
    • Limited Warranty. THE WARRANTIES FOR any PRODUCT purchased by you is governed and set forth in the limited warranty provided with that Product (“Limited Warranty”).
    • DISCLAIMERS
      • EXCEPT FOR THE LIMITED WARRANTY described in section 12.1, THE site AND KLEVERNESS SYSTEM (AND ANY PART THEREOF), AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY Kleverness, ARE PROVIDED "AS IS" AND "AS AVAILABLE". Kleverness AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT.
      • Kleverness AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE SITE, KLEVERNESS SYSTEM (OR ANY PART THEREOF), OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY Kleverness OR CONTENT MADE AVAILABLE THROUGH THE SITE AND/OR KLEVERNESS SYSTEM: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES; (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 KLEVERNESS, ANY THIRD PARTY, OR THOUGH THE KLEVERNESS SYSTEM, SHALL CREATE ANY WARRANTY.
      • THE KLEVERNESS SYSTEM MAY PROVIDE YOU INFORMATION (“PRODUCT INFORMATION”) REGARDING YOUR PRODUCTS AND/OR YOUR LIGHTBULBS, APPLIANCES, AND/OR ANY OTHER THIRD PARTY PRODUCTS, SERVICES OR APPLICATIONS CONNECTED TO YOUR PRODUCTS (COLLECTIVELY, “CONNECTED PRODUCTS”). THE TYPE OF CONNECTED PRODUCTS THAT MAY BE CONNECTED TO YOUR PRODUCT MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE,” AND KLEVERNESS DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE.
      • Kleverness is not liable for any interruptions to internet connectivity, Wi-Fi connectivity or availability OR UNAVAILABILITY of services OR PRODUCTS OR TECHNOLOGY offered through third parties. Kleverness will not be responsible for any problems or liability arising from the use of third party software or hardware in relation to the site or Kleverness system. THE products are NOT FAULT-TOLERANT AND are NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE PRODUCTS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”).  kleverness EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY AND ANY OTHER LIABILITY FOR HIGH RISK ACTIVITIES; and
      • KLEVERNESS DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY SERVICES OR PRODUCTS ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY PRODUCTS AND SERVICES CONNECTED TO THE PRODUCTS), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND KLEVERNESS WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
  1. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) IN NO EVENT SHALL Kleverness BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL OR OTHER DAMAGES RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE site and/or the kleverness system (or any part thereof), and/or ANY OTHER MATERIALS OR SERVICES PROVIDED BY Kleverness, EVEN IF Kleverness HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT TO THE EXTENT SUCH DAMAGES ARISE DIRECTLY AND SOLELY FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF Kleverness, AND (II) IN NO EVENT SHALL Kleverness’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THESE TERMS OR THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE site and/or the kleverness system (or any part thereof), and/or ANY OTHER MATERIALS OR SERVICES PROVIDED BY Kleverness EXCEED (A) THE FEES PAID TO Kleverness BY YOU HEREUNDER WITH RESPECT TO THE APPLICABLE Kleverness PRODUCT PURCHASED BY YOU GIVING RISE TO THE CLAIM OR LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100.00), IF YOU HAVE PAID NO FEES TO Kleverness HEREUNDER.  KLEVERNESS DISCLAIMS ALL LIABILITY OF ANY KIND OF KLEVERNESS’ LICENSORS AND SUPPLIERS.
  2. Application of Limitations and Disclaimers to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 12 and 13 above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer.  The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
  3. Basis of the Bargain. The warranty disclaimer and limitation of liability set forth above in Section 12 and 13 are fundamental elements of the basis of the agreement between Kleverness and you.  Kleverness would not be able to provide the Site or Kleverness System on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Kleverness’ suppliers.
  4. EXCLUSIONS. Notwithstanding anything in these Terms to the contrary, Kleverness will have no responsibility or liability of any kind under these Terms or otherwise, arising or resulting from: (i) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Kleverness; (ii) nonconformities resulting from your, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Site and/or Kleverness System, or other services provided hereunder by Kleverness; (iii) modification, amendment, revision, or change to the Site and/or Kleverness System, or any part thereof, by any person other than Kleverness; or (iv) any other factor outside of Kleverness’ reasonable control.
  5. Availability of the Services.Information describing the Site and Kleverness System is accessible worldwide but this does not mean the Site and/or Kleverness System, or certain portions thereof, are available in your country. Kleverness may restrict access to the Site and/or Kleverness System, or portions thereof, in certain countries in its sole discretion. It is your responsibility to make sure your use of the Site and Kleverness System is legal in your country of residence. The Site and/or Kleverness System may not be available or accessible in all languages. If at Kleverness’ reasonable determination, you use the Site and/or Kleverness System or any other material or services provided by Kleverness to you in a manner that violates laws, creates an excessive burden or potential adverse impact on Kleverness’ systems, in addition to any of its other rights or remedies, Kleverness may, without liability to Kleverness, immediately suspend or terminate your access to the Site and/or Kleverness System.
  6. Export Control. You may not use or otherwise export or re-export the Applications, Products or Technology (or any aspect of the foregoing) except as authorized by United States law and the laws of the jurisdiction in which the Applications, Products and Technology was obtained. In particular, but without limitation, the Applications, Products and Technology may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Site and/or Kleverness System, you represent and warrant that you are not located in any such country or on any such list.
  7. Governing Law and Dispute Resolution
    • Governing Law. These Terms will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Applications, Technology, or any software and services provided hereunder. Furthermore, these Terms (including without limitation, the Applications, Technology and any software and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
    • Disputes. Except as otherwise set forth in these Terms, you agree that any dispute between you and Kleverness arising out of or relating to these Terms, the Site, Kleverness System (or any part thereof), or any other Kleverness products or services (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
    • Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, you agree to first contact us directly at hello@kleverness.com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, you or Kleverness may institute arbitration in accordance with the procedures set forth in this Section.
    • Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 19.3 above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in San Francisco, California unless otherwise mutually agreed to by the parties. The arbitration shall be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (AAA) as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.
    • Opting-Out of Arbitration. You may opt-out of THE agreement to arbitrate by providing Kleverness written notice within thirty (30) days of first accepting these Terms. Your notice must include: (i) your full name (first and last); (ii) the email address you used to register your USER account or purchase the products; and (iii) a clear statement that you decline this agreement to arbitrate.
    • Exception to Arbitration.Notwithstanding anything in these Terms to the contrary to the extent you have in any manner violated or threatened to violate any of Kleverness’ intellectual property rights, Kleverness may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts.
    • No Class Actions. You may only resolve Disputes with Kleverness on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under these terms.
    • Venue. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Kleverness agree that any judicial proceeding will be brought in the federal or state courts of San Francisco, California. Both you and Kleverness consent to venue and personal jurisdiction there.
    • Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site and/or Kleverness System must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
  8. THIRD PARTY RIGHTS
    • Third Party Rights. You acknowledge and agree that certain distributors (such as app store providers) are intended beneficiaries of These Terms and have the right to enforce these Terms directly against you. Other than as set out in this Section 20, these Terms are not intended to grant rights to anyone except you and Kleverness, and in no event shall these Terms create any third party beneficiary rights.  Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of these Terms are not subject to the consent of any other person.
    • Kleverness iOS Applications. The following additional terms and conditions apply with respect to any Applications provided or made available to you by Kleverness, designed for use on an Apple iOS-powered mobile device (an “iOS App”): you acknowledge that these Terms are between you and Kleverness only, and not with Apple, Inc. (“Apple”). Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service. Kleverness, and not Apple, are solely responsible for the iOS App and related content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App.  To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. You agree that Kleverness, and not Apple, is responsible for addressing any claims by you relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Kleverness as provider of the iOS App. You agree that Kleverness, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App. You represent and warrant that you: (a) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as it relates to the license granted herein to you to use the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to the license granted herein to you to use the iOS App as a third-party beneficiary thereof.
    • Kleverness Android Applications. The following additional terms and conditions apply with respect to any Applications provided or made available to you by Kleverness, designed for use on an Android-powered mobile device (an “Android App”): you acknowledge that these Terms are between you and Kleverness only, and not with Google, Inc. (“Google”). Your use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where you have obtained the Android App. Kleverness, and not Google, is solely responsible for the Android App and the related content available thereon.  Google has no obligation or liability to you with respect to the Android App or these Terms. You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to the Android App.
  9. General. Neither the rights nor the obligations arising under these Terms are assignable by you, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of these Terms must be in writing and executed by both parties.  The failure of either party to exercise any right provided for by these Terms shall not be deemed a waiver of that right.  If any term or provision of these Terms is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from these Terms and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in these Terms. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in these Terms and its performance shall be construed as creating a joint venture or agency between Kleverness and you.  Kleverness may delegate the performance of any services hereunder to its affiliates and contractors.  These Terms, the Privacy Notice, the Additional Terms and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described.   Any notice to you may be provided by email.  The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms.  As used in these Terms, the word “including” means “including but not limited to.” You agree that these Terms will not be construed against Kleverness by virtue of having drafted them.  The official text of these Terms (and any notice submitted hereunder) will be in English.  The parties acknowledge that they require that these Terms be drawn up in the English language only. Les parties reconnaissent qu’elles ont exigé que la présente convention soit rédigée en language anglaise seulement.   In the event of any dispute concerning the construction or meaning of these Terms, reference will be made only to these Terms as written in English and not to any translation into another language.  Any delay in performance of any duties or obligations of either party will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, or any other event beyond the reasonable control of such party.
  10. QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact us at hello@kleverness.com if you have any questions about these Terms.

 

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