Welcome to the online store (“Store”) provided by Mivatek International Inc. (“Mivatek”, “we”, “our”, “us”) and thank you for choosing our products (“Products”) and subscription services (“Services”). By purchasing or using our Products and Services, you are accepting and agreeing to these terms and conditions (“Terms”) and additional terms we may post at our website or provide in the box with our Products from time to time. If there is any inconsistency between the terms at different places, these Terms herein control. Please read them carefully. You represent and warrant that you have rights, authority and capacity to accept and agree to these Terms. We reserve the right, in our sole discretion, to modify the Terms at any time, so please review the Terms each time prior to making a new purchase from our Store. You shall be responsible for reviewing and becoming familiar with any such modifications. If you do not agree with any of these Terms, you should not purchase the Products and the Services and must cease to use our Services including your account, our software and our application from your mobile device or computer immediately. Your use of the Products or the Services following such modification constitutes your acceptance of the Terms as modified.
1.SCOPE OF SERVICE
Subject to the Terms, our Services may include mobile-based home monitoring system, video streaming and recording, personal care, alert, automation, use of the user account, and the mobile and website application. Details of the Services are described on our website. The Services are for your own use, and not for the use or benefit of any third party. We may change, suspend or discontinue the Services at any time, including the availability of any feature, database, connectivity, or content associated therewith. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. You are consenting to automatic software update of the Service. You may only use the Services and Products in a manner that complies with all laws that apply to you. We can’t and won’t be responsible for your use of the Services or the Products in a way that breaks the law. You are solely responsible for complying with all applicable laws and regulations of the city, the county, the state and the country for which the Products are installed.
To use the Services, you must register a user account and provide information about yourself as prompted by the registration form. You represent and warrant that:
(1) all required registration information you submit is truthful, accurate and complete;
(2) you will maintain the accuracy of such information and notify us without delay of any change of such information; and
(3) your use of the Services does not violate any U.S. or other applicable law or regulation. You are solely responsible for maintaining the confidentiality of your account login information and for all activities that occur under your account and preserving your password securely to prevent others from gaining access without your permission. We are not liable for any loss or damage arising from your failure to comply with the above requirements.
2.PRICING, PAYMENT AND EARLY TERMINATION
Except the special promotion Products or individual a la carte or add-on Products are subject to the terms described at our Store or website, at your own discretion you are free to choose from the following two payment options for the Products and the Services for the first three years (“Initial Term”):
(1) pre-paid Products with free Services during Initial Term (“Pre-Paid Customer”): Once you have paid in full for the Products selected, the associated Services will be free of charge for Initial Term. After the expiration of Initial Term, you will be charged monthly for the Service you select at the rate available at that time.
(2) Mivatek subsidized Products with monthly service charge for Initial Tem(“Monthly Charged Customer”): You are responsible for an activation fee and Mivatek will subsidize the Products you select, provided that you will pay the monthly service fees and charges fully for the Services you select during Initial Term. After the expiration of Initial Term, you will be charged monthly for the Service you select at the rate available at that time. For Monthly Charged Customer, IF YOU CANCEL THE SERVICE BEFORE THE EXPIRATION OF INITIAL TERM, YOU AGREE TO PAY Mivatek AN EARLIER TERMINATION FEE AT 75% OF THE TOTAL REMAINING MONTHLY CHARGES. For example, if you cancel the Service on 2nd month after receiving the Products, you will be charged for 75% of the remaining 35 months service fee for the Service your select. If cancelling on 35th month after receiving the Products, 75% of 2 months service fee will be charged. You agree that Mivatek providing subsidies on the Products replies on your agreement to receive and pay for the Services during Initial Term and has incurred cost and lost profit in entering the agreement with you. You agree that such amount is not a penalty but the liquidated damage to Mivatek. You further agree that such amount is immediately due should you cancel the Service or otherwise terminate the Terms. After Initial Term, these Terms and if applicable, additional Term as described in the first paragraph, will be automatically renewed every successive month until termination by either party according to section 4.
The service fee will depend on the number and/or types of devices you select for your Services. These charges and fees will be automatically billed on a monthly basis to the payment method you provide to us. When subscribing to Services, a small amount of funds will be withheld from your payment method for verification purposes. This amount will be released and returned back to you once the verification process is complete. You further authorize us to obtain a credit check or credit report about you from a consumer reporting agency when processing your order and at any time during the term you use our Services. All Products offered on the Store are subject to availability. We reserve the right to reject all or part of an order and to discontinue offering certain Products and/or Services without prior notice. By providing a credit card or other payment method to us, you represent and warrant that you are authorized to use the designated payment method and that you authorize us or our third-party payment processor to charge for the total amount of your order including any applicable taxes and other charges. If the payment method you provide cannot be verified or otherwise not acceptable, your order may be suspended or cancelled. It is your responsibility to resolve the problem we encounter in order to proceed with your order. If you want to change or update your payment method, you may do so at any time by logging into your account and editing your payment information. If you miss a monthly payment for any reason, we have the right to apply for the missed payment as an addition to any future billing amount.
The price for the Products and the Service are subject to change at any time but it will not affect the order you already placed or the service fee during your Initial Term. After Initial Term if we change the pricing for the Service you have selected, we will send you a notice through an email or some other appropriate means or post the change at the website and your continued use of the Services following such notification constitutes your acceptance of any new or increase in charges. Except for section 5 regarding return in 30 days, any fee paid for the Services is nonrefundable.
3. SHIPPING AND DELIVERY
Subject to any future change and except the special promotion Products or individual a la carte or add-on Products, we currently do not charge shipping cost for the Products shipped to your U.S. address by UPS Ground. You may select UPS Next Day or Second Day with additional cost charged to you. The estimated delivery date is not a guaranteed date. If the Products are refused and returned to us, we will charge a handling fee in $19.99 and refund the remaining balance to you, which may take up to 45 days after we receive the refused Products.
The Terms shall remain in full force and effect while you use the Products and the Services. For Pre-Paid Customer, you may terminate your use of the Services at any time. For Monthly Charged Customer, you may terminate your use of the Services at any time after Initial Term, or an early termination fee pursuant to section 2 (2) will be charged. You should contact our customer support and expressly state your intent for termination. Removing Products paired with our Services or deleting an account from the mobile or website application or our website will not be considered as termination. Once our customer support confirms the termination, you will only be charged until the end of the billing month in which you terminate the Service. We may also suspend or terminate your use of any and all Services at any time, without prior notice, if you breach any of these Terms, including but not limited to failure to make payment when due. For Monthly Charged Customer, if we terminate your use according to this section during Initial Term, you agree that you will still be subject to early termination fee pursuant to section 2(2).
If you purchase directly from the Store and you want to return the Products for a refund, you may do so within 30 days following the date of purchase (“Trial Period”) by contacting our customer support and expressly state your intent for return regardless you are Pre-Paid Customer or Monthly Charged Customer. For Pre-Paid Customer, we will refund fully the price you paid for the Products subject to our inspection of the Products returned. If we determine in our sole discretion that the Products returned is modified to alter functionality or capability or damaged by abuse, misuse, liquid contact, fire or other external cause, we may reduce the amount of the refund to you to reflect the decrease in value of the Products. For Monthly Charged Customer, we will refund the activation fee and the service fee for your first-month use of the Service subject to our inspection of the Products returned as abovementioned, and you will not be held to fulfill Initial Term and no early termination fee will be charged. You need to receive a number of return materials authorization (“RMA number”) before shipping the Products back to us and such RMA needs to be included in your shipment. You must return the Products you purchased in original packaging with all materials, accessories and any promotional merchandise if any, within 7 days after you receive an RMA number from our customer support. We will issue a refund within 30 days after receiving your returned Products. If you purchased through a third party reseller, please contact the reseller directly for instructions on the return.
6.LIMITATION OF MONITORING AND NOTIFICATION SERVICE
We provide a self-monitored service, not professional monitoring services. Details of our Services can be found on our website.
(1) Intended Use and No Safety Warranty. The Services are intended to provide some assurance and comfort regarding non-time-sensitive information regarding your premises with installed Products. The Services should not be fully reliable by you or any third party, as such Services are subject to interruptions and failures for many reasons including but not limited to the stability of internet access and the signal of your mobile carrier. You acknowledge such limitations and the very nature of the Services and agree that Mivatek, and its agents, employees, contractors, subsidiaries, dealers, affiliates, parents or partners are not responsible for any damage allegedly caused by the failure or delay of the Services.
(2) No Life-Safety Service and Your Designated Contact. You further agree that the Products and/or Services are not certified for emergency response and we make no warranty or representation that use of the Products and/or the Services will increase the level of safety. Our customer support will only answer your questions regarding the Products and the Services during normal business hours but in no way play a role as lifesaving contact. It is your responsibility to designate one or multiple emergency contacts and to ensure that the appropriate event messages can be relayed to you and your designated contacts. Your designated contacts are authorized to act on your behalf. It is also your and your designated contact’s responsibility to determine the appropriate response to all events and you agree that, upon receiving a notification, you and your designated contact are entirely responsible for the response. Should such a response incur costs, you accept full liability for those costs. If you attempt to use our Products and Services for medical emergency notification, you agree that such use of the Services, regardless of any delay, involves uncertainty, risk, and possible serious injury, disability or death, for which you will not attempt to hold us responsible or liable. You acknowledge that the Products may experience signal transmission failures or delays for any number of contributing factors, which makes the Services and resulting notification unpredictable. You acknowledge that the Products has not been designed or programmed pursuant to any laws, codes or rules that may be applicable to your particular premises, including but not limited to any provisions of the National Fire Protection Association or the International Residential Code.
(3) Suspensions. Our Services may be suspended temporarily or for certain period without notice in the case of denial of service, system failure, maintenance, repair, or other circumstances. No credit or refund will be provided for any period during which our Services are suspended or unavailable.
7.NO INSTALLATION PROVIDED
Our Products are not intended to be installed by professional installers. We will not provide installation services of any kind, including but not limited to providing assistance in physically setting up Products or installation-related consultation on your premises. Some jurisdictions may have applicable laws regarding how and where to install Products and you should check these relevant laws. You are responsible for all installations of the Products and we are not responsible for any injury or damage caused by the self-installation. However, we will provide online or over-the-phone technical support for troubleshooting any Products or Services issues during normal business hours. For more information, please visit the support page on our website.
Subject to your compliance with these Terms and except the special promotion Products are subject to other terms described at our Store or website, we warrant that the Products will be free from defects in materials and workmanship for three (3) years (“Warranty Period”) from your purchase date of the Product (“Limited Warranty”). This Limited Warranty does not cover damage caused by
(1) normal wear and tear;
(2) breakdowns, fluctuations, or interruptions by electric power;
(3) misuse, accident, abuse;
(4) modifications, alterations, tampering, improper maintenance or repairs, or service performed on Products by a service provider not expressly authorized by us, or uses other than as intended and described in the product manuals, specifications or other instructions provided by us; or
(5) Acts of God, including but not limited to earthquake, flood, lightning, tornado, or hurricane. The Limited Warranty does not cover consumable parts such as batteries.
If during the Warranty Period, you find any Products to be defective, you may contact our customer support and we will at our sole discretion repair or replace any defective Products or their parts with a new or refurbished Product or part. If the Product or a part integrated within it is no longer available, we may at our sole discretion replace the Products with similar products of similar functions. This is your sole and exclusive remedy for breach of this Limited Warranty. Before you ship the defective Products back to us, you will need to call our customer support to receive an RMA number and follow the related RMA instructions. You will be responsible for the shipping cost for shipment to us while we will pay the shipping cost for the repaired Products or replacement shipped to you.
9.DISCLAIMER OF OTHER WARRANTIES
Other than the Limited Warranty provided under the Terms, you agree that we make no guarantee, representation or warranty of any kind, including any implied warranty of merchantability or fitness for a particular purpose, with respect to our Services, Products, and Store and its content, as they are provided on “as-is” basis. Your exclusive warranty remedy is set forth in section 8. We do not represent, warrant, or guarantee that use of the Services or Products will provide safety in your premises or that the information we provide will be available, accurate, or reliable. You use our Products and Services at your own discretion and risk. You will be solely responsible for any and all loss, liability or damage resulting from your use of the Products and/or the Services, and we expressly disclaim such responsibility.
10.LIMITED LIABILITY AND LIMITATION ON DAMAGES
Our Products and Services cannot eliminate occurrences of events including but not limited to fires, floods, burglaries, robberies, and medical issues. We are not liable for any risk that you, your property, any person, or property of others, may be subject to damage, injury or loss if such an event occurs, and we are not liable for any such damage, injury or loss. The allocation of such risk remains with you and not with us. You will be solely responsible for any and all loss, liability, or damage, including to your wiring, fixtures, electricity, home, computer, mobile device, and all other items and pets in your premises, resulting from your use of the Products and the Services. In accepting the Terms, you release, waive, discharge and promise not to sue or bring any claims of any type against Mivatek, and its agents, employees, contractors, subsidiaries, dealers, affiliates, parents or partners for any damage, injury or loss relating or alleged to relate in any way to the Products or the Services provided by us. To the maximum extent permitted by applicable law, in addition to disclaimer in section 9 and this section 10, IN NO EVENT WILL (1) WE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR THE SERVICES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (2) OUR TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS OR THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO US OR OUR AUTHORIZED RESELLER FOR THE PRODUCTS AND THE SERVICES AT ISSUE IN THE PAST 6 MONTHS PRIOR TO THE CLAIM, THREATEN CLAIM OR ISSUE IS BROUGHT OR MADE BY YOU OR YOUR REPRESENTATIVES. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. WE FURTHER DISCLAIMS ALL LIABILITY OF ANY KIND OF OUR VENDORS OR LICENSORS. THIS SECTION 10 APPLIES NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO THE PERFORMANCE OR NONPERFORMANCE BY US OF OUR OBLIGATIONS UNDER THESE TERMS OR FROM NEGLIGENCE (ACTIVE OR OTHERWISE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF US, OUR AGENTS OR OUR EMPLOYEES.
11.NO INSURANCE; WAIVER OF SUBROGATION
You agree that we are not an insurer and that we are not providing you with insurance of any type. The amounts we charge are based solely upon the value of the Products and the Services we provide and are not insurance premiums or related to the value of your property, anyone else’s property located in your premises or any risk of loss at your premises. You should purchase insurance to protect against any risk of loss at your premises. In the event of any loss, damage or injury, you will look exclusively to your insurer and not to us to compensate you or anyone else. You release and waive for yourself and your insurer all subrogation and other rights to recover against us arising as a result of the payment of any claim for loss, damage or injury.
If any other person, including your subrogating insurer, makes any claim or files any lawsuit against us in any way related to the Products or the Services provided by us to you, you agree to indemnify, defend and hold us harmless from any and all such claims and lawsuits, including the payment of all damages, expenses, costs and attorneys’ fees. Your duty to defend is separate and distinct from your duty to indemnify and hold harmless and arises upon the assertion of a claim or demand against us and regardless whether we have been found liable or whether we have incurred any expense.
14.SERVICE LIMITATION DUE TO THIRD PARTY
You acknowledge further that we use third party service providers to enable some aspects of the Services, for example, data storage and synchronization.
We are not responsible for third parties or their devices and services nor provide a credit or refund for, loss or interruption in the Services caused by third parties. We hereby disclaims and you hereby discharge, waive and release us and our vendors or licensors 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 devices and services.
15. DISPUTE AND ARBITRATION
If a dispute arises between you and us, we will try our best to address your concerns. You agree that you will first notify us about any dispute you have with us regarding the Terms and/or the Products and/or the Services.
(1) Limited Statute of Limitation.
YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT, INCIDENT, OR FACTS RESULTING IN LOSS, INJURY OR DAMAGE OR GIVING RISE TO A DISPUTE, OTHERWISE YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM OR TO BRING ANY SUIT OR ACTION BASED UPON SUCH EVENT, INCIDENT, FACTS, OR DISPUTE.
You further agree, subject to section 15(5), to submit any claim, dispute, action, cause of action, issue, or request for relief to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section 15. Further, you agree that arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This arbitration clause shall survive termination of the Terms. This section is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your purchase of our Products and use of our Services and/or Products. Any disputes or claims made by you or your representatives against us arising out of or relating to Terms or your purchase of our Products and use of our Services and/or Products (whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.
(3) Arbitration Procedures
You must first present any claim or dispute to us by contacting our customer support to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days. We may request arbitration against you if we can’t solve the issues with you within 60 days after we notify you of a dispute or claim in accordance with section 17(3). The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by these Terms. The place of any arbitration will be San Francisco, California, United States, and will be conducted in the English language. You and we agree that these Terms evidence a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration laws. Claims will be heard by a single arbitrator. An arbitrator may not award relief in excess of or contrary to what these Terms provide, order consolidation or arbitration on a class wide or representative basis, or award punitive damages or any other damages aside from the prevailing party’s actual damages or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect. There shall be no right or authority for any claims subject to this section to be arbitrated on a class action or consolidated basis or brought in a purported representative capacity on behalf of the general public including but not limited to as a private attorney general.
(4) Costs of Arbitration
All administrative fees and expenses of arbitration will be divided equally between us and you. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(5) Exception of Confidentiality and Intellectual Property Rights.
Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our confidential information and intellectual property rights or to prevent loss of data or damage to our servers in any court of competent jurisdiction.
16. GOVERNING LAW
The Terms will be governed by and interpreted in accordance with the laws of the State of California, United States, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. You agree that the exclusive jurisdiction (personal and, as allowed, subject matter) and venue for any action relating to the Terms shall be a federal or state court in Santa Clara County, California, and you consent to such jurisdiction and venue, unless such claim and dispute is required to be arbitrated as set forth in section 1 5.
(1) Waiver. Your waiver stated under these Terms includes the express waiver under CALIFORNIA CIVIL CODE SECTION 1542 WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH 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 PROVISIONS IN ANY OTHER JURISDICTIONS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder.
(2) Transfer. These Terms are not assignable, transferable or sublicensable by you except with our prior written consent or expressly agreed under these Terms. For Pre-Paid Customer, the remaining unused service during Initial Term and associated Limited Warranty may be transferred provided that you remove all Products from your account, physically turn the Products to your assignee or transferee, and notify us by contacting customer support, and your assignee or transferee activates a new account after paying the new activation fee. We may transfer, assign or delegate the Terms and associated rights and obligations without your consent.
(3) Electronic Communications. You agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order in the Store, we collect and store your email address. From that point forward, your email address is used to send you information about our Products and Services unless you opt-out of such emails. We are not responsible for any automatic filtering you or your network provider may apply to email notifications. We may also provide notification to you by posting such notice at our website. A copy of the Terms produced from electronic format is legally equivalent to the original for any and all purposes, including litigation.
(4) Severability If any section of these Terms is found to be unenforceable or invalid, that section shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
(5) Entire Agreement. Both parties agree these Terms contain the entire understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
(6) Headings. Headings for each section have been included above for convenience, but such headings do not have any legal meaning.