My Chihiros User Agreement
SHORT FORM
The following key points of this UserAgreement are brought for your convenience only. They do not substitute thefull Terms, which follow below.
- The Service. A platform that enables you, in conjunction with devices separately purchased from us or through one of our authorized distributors (each a “Device”) to monitor your aquarium and to remotely control various parameters related to the aquarium, such as temperature, wave intensity, light intensity, etc. The Service is for use only with our Devices. The nature of the Service may change from time to time. We do not guarantee that any specific element of the Service will remain operational or will not change. Please read the Manual provided with your Devices carefully. You shall be liable for any failure to comply with the instructions in the Manual. The updated Manual can always be found at: http://www.chihiros.cn/en/zhinan/m6.html.
- Registration. The Service is available for its registered users. You are responsible if you provide any access to the service (or any password required for use of the Service) to any third party.
- Privacy. We respect your privacy as further explained in our Privacy Policy which is considered part of this User Agreement: Privacy Policy
- Metrics; Notifications and Warnings. We will continuously collect numerous types of information (including personal information) as further explained in our Privacy Policy. This information may then be used to generate metrics and for other purposes. Personal information shall only be used for the purposes specified in the Privacy Policy]. We do not guarantee the accuracy of the metrics that we collect or provide to you, and you acknowledge that any action taken by you with respect to such metrics is at your own risk.
You acknowledge that we may provide you with notifications, warnings or suggestions based on the metrics generated and other information we gather from you. You acknowledge that such notifications, warnings or suggestions may be based on false positives or false negatives and that we do not guarantee the accuracy thereof and take no responsibility for your decision to act (or not act) based on such notifications, warnings or suggestions. You are responsible to independently verify any and all notifications warnings or suggestions provided by us. In addition, we do not guarantee that we will provide you with specific notifications, warnings or suggestions and we do not take responsibility for doing so. It is your responsibility, at all times, to manually check your aquarium and ensure that it is functioning correctly. - Connectivity Modes.
You acknowledge that If your Devices are in the “Offline Mode” or “Direct Mode”, all or certain parts of the Service may not be available. In addition, without connectivity, all or many parts of the Service may not function, including the provision of notifications and your ability to control the Devices. - Fees. By purchasing your Device(s) you receive the right to use our basic Services. We reserve the right to charge additional fees, for certain premium aspects of the Service, in which case we will first notify you.
- Intellectual property. All legal rights in the Service, including all intellectual property rights belong to us.
- Disclaimer of warranty. The Service is provided for use “as is”. We disclaim all warranties and representations with respect to the Service. We do not guarantee that any metrics, notifications, warnings or suggestions provided to you by the Services will be accurate or that you will receive such on a timely basis. Please review the full disclaimers set out in these Terms.
- Termination; Suspension. We may at any time discontinue or terminate the operation of the Service (or part thereof) in the event that you breach our terms or in the event that we cease providing such Service (or part thereof), including if we cease providing the Service (or part thereof) where you reside. At any time, we may suspend the Service in the event that you breach our terms or if we believe that there is a risk that you shall do so. We may also, from time to time, suspend the services for internal reasons, for example for maintenance purposes or due to our third-party suppliers.
- Limitation of liability. Our liability to you is limited. Please review in the relevant sections in the main part of these Terms.
- Law & jurisdiction. Use of the Service is governed by the laws of China MOST DISPUTES BETWEEN US WILL BE DECIDED BY ARBITRATION AND NOT BY A COURT OF LAW OR A JURY.
.… and in detail
Please read this User Agreement in depth. Bysigning up to or using the Service (as defined hereunder) you agree to theterms hereof (the “Terms”). If you do not agree to the Terms, please do not usethe Service, or stop using the Service immediately.
ABOUT US AND THESERVICE
The Service provided hereunder (the“Service”) enables you, through our App (the “App”) and inconjunction with devices separately purchased from us or through one of ourauthorized distributors (each a “Device”) to monitor your aquarium and to remotely control various parameters related to the aquarium,such as temperature, wave intensity, light intensity, etc. The Service isprovided, owned and operated by [Biological Technology Co., Ltd.] or one of itsaffiliates (“Chihiros aquatic studio”, “we” “us” and “our”).
You may use the Service only with ourDevices. Use of the Service with any other third-party device violates theterms of this User Agreement. You shall be responsible for any damages causedby such use and we shall have no responsibility for any such use.
As our scope develops, the nature of theService may change. We may, at any time and without prior notice change thelayout, design, scope, features or availability of our App and the Service.
Upon purchase of your Devices, you wereprovided with a copy of our Installation and Operation Manual (the “Manual”).Please read the Manual carefully, as it provides guidelines to the Servicesprovided hereunder. You agree to follow all instructions provided by theManual. We shall not have any responsibility for your failure to do so. Pleasenote that as we widen the scope of the Service, and as we develop additionalDevices, the Manual may be amended from time to time. The latest version of theManual can always be found at: Download Center. You are responsible to ensure that youfollow the instructions of the most up-to-date Manual.
Use of the Service may be subject toadditional terms and conditions that govern the use of your cellular devices,application marketplaces or other services that interact with the App. Youalone are responsible for complying with such additional terms and conditions.
METRICS
Monitoring. Oursoftware will collect various types of information with respect to youraquarium and supply to you, through the App, some of such information in itsoriginal state, and other of such information as analyzed by the Service’sautomated engine, (in each case, the “Metrics”). Personal information collectedmay also be used for other purposes specified in the Privacy Policy.
We do not guarantee the accuracy of theMetrics and you acknowledge that any action taken by you with respect to theMetrics, or based on the Metrics is at your own risk.
Based on the Metrics and on other informationcollected by us, you may receive various notifications, suggestions or warningswith respect to your aquarium (collectively, the “Notifications”). We do notguarantee that any or all problems with respect to your aquarium will be pickedup by our Notifications. As well, misdetections may occur.Furthermore, we have no obligation to provide Notifications and we thereforeadvise that you do not rely on receiving such Notifications, but that youmonitor your aquarium manually to ensure that it is functioning correctly.
You acknowledge that notwithstanding ourefforts to provide you with accurate Notifications, the Notifications providedmay be based on false positives or false negatives, and that we do notguarantee the accuracy thereof. You should independently verify any and all Notifications.
Your responsibilities.
You are solely and exclusively responsible tothoroughly review the Metrics frequently, and to verify the metrics by checkingyour aquarium manually. In addition, you are responsible to verify theNotifications, address the findings specified therein and determine whatactions are appropriate in light of them.
You are solely and exclusively responsiblefor all actions you take in response to the Metrics and Notifications.
You are solely and exclusively responsible tocarry out such actions as you deem appropriate as a result of the Metrics andNotifications.
We are not responsible or liable for yourreliance upon, or use of, the Metrics or the Notifications, your actions inconnection therewith, or any consequences resulting from them.
THOUGH WE MAKE EFFORTS TO HAVE THE METRICSand the notifications BE COMPLETE AND ACCURATE, We do not guarantee and make norepresentation about the accuracy, adequacy, completeness, credibility,authenticity, validity, or integrity of the METRICS or the notification.
CONNECTIVITY MODES
As specified in the Manual, your Devices maybe connected in three different modes, “Online Mode”, “Offline Mode” and“Direct Mode”. You acknowledge that in each of the Offline Mode and the DirectMode, all or certain parts of the Service may not be available. You areresponsible to ensure that your Devices are in the correct mode at all times.You specifically acknowledge that without connectivity to your Devices, all ormany parts of the Service may not function, including the provision ofNotifications, and your ability to control various parameters of your aquariumand Devices. It is your responsibility to ensure connectivity at all times. Weare not responsible for any failure of connectivity.
You also acknowledge that your Device may beinstalled with a back-up battery for use in the event that your power supplyfails. We are not responsible for the functioning of such battery, and you arerequired, at all times, to ensure that the battery functions as required.
IN NO EVENT WILL WE BE LIABLE FOR ANY ADVERSEEVENTUALITIES, INCIDENTS OR INJURIES TO YOUR AQUARIUM THE FLORA AND FAUNATHEREIN, OR OTHERWISE, RESULTING FROM LACK OF CONNECTIVITY, FAILURE OF BATTERY,LACK OF POWER SUPPLY OR FAILURE TO USE THE CORRECT OR NECESSARY CONNECTIVITYMODE.
REGISTRATION
Information you provide. The Service is available only to registered users. You must be at least 18years of age or older in order to register for the Service. In order toregister for the Service, you must download our App to your cellular device.
When you register to the Service, we will askyou to provide us the details we describe in our Privacy Policy (“Registration Information”). Onceregistered, you may access the Service using your email and password. Make surethat you change your password periodically. You may not transfer your accountto any third party, in any manner whatsoever. You must maintain the confidentialityof your account login details. In the event that you provide your accountdetails to any third party, you are responsible for all use they make of theService. You agree to inform us of any unauthorizeduse of your account of whichyou become aware.
False information. If we believe that the Registration Information you provide is false,deceptive or offensive, or if we believe that you violated these Terms, wereserve the right to suspend or terminate your user account or your access tothe Service.
Additional Information. We reserve the right to request additional information to verify youridentity, during the registration process, or throughout your use of theService.
YOUR PRIVACY
We respect your privacy. Our Privacy Policy, which is combined into these Terms,explains our privacy practices.
fees
By purchasing your Device(s) you receive theright to use our basic Services. We reserve the right to begin charging feesfor a premium version of the Service, in which case we will first notify you.
RESTRICTIONS
Prohibited use. When using the Service, you must refrain from –
· Breachingthese Terms or any other applicable rules and instructions that we may conveywith respect to the Service;
Engaging in any activity that constitutesor encourages conduct that would constitute a criminal offense, give rise tocivil liability or otherwise violate any applicable law, including lawsgoverning privacy, defamation, spam and copyright;
Interfering with, burdening or disruptingthe functionality of the Service;
Breaching the security of the Service orpublicly identifying any security vulnerabilities in it;
Circumventing or manipulating theoperation or functionality of the Service, or attempting to enable features orfunctionalities that are otherwise disabled, inaccessible or undocumented inthe Service;
Sending automated or machine generatedqueries;
Using robots, crawlers and similarapplications to collect and compile content from the Service or send data tothe Service including for the purposes of competing with the Service, or insuch ways that may impair or disrupt the Service’s functionality;
Displaying or embedding content from theService, including by any software, feature, gadget or communication protocol,which alters the content or its design;
Impersonating any person or entity, ormaking any false statement pertaining to your identity or affiliation with anyperson or entity;
Collecting, harvesting, obtaining orprocessing personal information regarding the Service’s users, without theirprior explicit consent;
Abusing, harassing, threatening orintimidating other users of the Service;
You are solely responsible for the contentyou make available through the service and for the consequences associated withdoing so.
INTELLECTUAL PROPERTY
Our intellectual property. All rights, title and interest in and to the Service, including patents,copyrights, trademarks, trade names, service marks, trade secrets and otherintellectual property rights and any goodwill associated therewith, are theexclusive property of Shanghai Ogino Biological Technology Co., Ltd. and itslicensors. This includes our App’s design, graphics, computer code, “look andfeel” and our domain names.
Restrictions. Youmay not copy, distribute, display or perform publicly, make available to thepublic or communicate to the public, sublicense, decompile, disassemble, reduceto human readable form, execute publicly, make available to the public, adapt,make commercial use of, process, compile, translate, sell, lend, rent, reverseengineer, combine with other software, modify or create derivative works of ourApp or the Service or any part thereof, in any way or by any means.
You may not use any name, mark, logo ordomain name that is confusingly similar to our marks, logos and Internet domainnames. You must refrain from any action or omission that may dilute, or damageour goodwill.
TERMINATION
Terminating Your Account. You may, at any time, request toterminate your account by contacting us at chihiros@chihiros.cn . Please note that merelyuninstalling the App won’t delete your account and its details, including allthe information associated with it, which would still remain on our systems.
We may cease providing you with the Service(or any part thereof) if we determine that you breached these Terms or in theevent that we cease providing such Service (or any part thereof) where youreside. At any time, we may suspend the provision of the Service in the eventthat you breach these Terms or if we believe that there is a risk that youshall do so. We may also, from time to time, suspend the Service for internalreasons such as for purposes of maintenance or for reasons due to ourthird-party suppliers.
Upon termination for any reason, your rightto use the Service is terminated and you must immediately cease using theService; and we will not be liable to you for termination of access to the App.
Changes TO THESETERMS
We may revise these Terms, in whole or inpart, at any time by putting you on notice of the amended Terms. Your continueduse of the App and the Services after the effective date of the amended Termsconstitutes your consent to the amended Terms.
DISCLAIMER OFWARRANTY
THE SERVICE IS PROVIDED ON AN “AS IS” AND “ASAVAILABLE” BASIS, WITH ALL FAULTS. WE AND OUR OFFICERS, DIRECTORS,SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS AND AFFILIATES (THE “ShanghaiOgino Biological Technology Co., Ltd. PARTIES” )DISCLAIM ALL WARRANTIES ANDREPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, ITSMETRICS AND NOTIFICATIONS INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OFMERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANSHIP, QUALITY,NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, UTILITY,ACCURACY, OR EXPECTED BENEFITS.
WE DO NOT WARRANT THAT (1) THE SERVICE WILLBE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS INANY WAY; (2) THE SERVICE WILL ALWAYS BE AVAILABLE OR FREE FROM MALWARES,COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS; (3) THE QUALITY OF THE SERVICEAND METRICS AVAILABLE THROUGH OR IN THE APP, WILL MEET YOUR EXPECTATIONS; (4)THE METRICS AND NOTIFICATIONS PRESENTED THROUGH THE APP WILL BE ACCURATE,BENEFICIAL OR RELIABLE; (5) THE RESULTS OF THE USE OF THE SERVICE WILL BESATISFACTORY AND WILL FIT YOUR EXPECTATIONS OR REQUIREMENTS.
NO REPRESENTATION OR OTHER AFFIRMATION OFFACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE ORPERFORMANCE OF THE SERVICE, OR THE METRICS OR NOTIFICATIONS PRESENTED ON ORTHROUGH THE APP, WHETHER OR NOT MADE BY US, WHICH IS NOT EXPRESSLY CONTAINED INTHESE TERMS, SHALL BE DEEMED TO BE A WARRANTY BY THE INVOLVED PERSONS FOR ANYPURPOSE, OR GIVE RISE TO ANY LIABILITY TO US WHATSOEVER.
YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THEAPP IS ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWNRISK.
LIMITATION OFLIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLELAW, AND WITHOUT DEROGATION TO OTHER PROVISIONS LIMITING OUR LIABILITY HEREIN,WE SHALL NOT BE LIABLE, FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY,STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGE INCLUDING BODILY INJURY OR OTHERDAMAGE CAUSED BY USING THE SERVICE, OR ANY SIMILAR DAMAGE OR LOSS (INCLUDINGLOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT,CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE),ARISING FROM, OR IN CONNECTION WITH THE SERVICES OR THESE TERMS, INCLUDING WITHRESPECT TO :
THE METRICS ORTHE NOTIFICATIONS (OR FAILURE TO PROVIDE METRICS OR NOTIFICATIONS)
THE USE OF, ORTHE INABILITY TO USE THE SERVICE OR ITS FEATURES;
ANY FAILURE,ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE;
ANY FAULT, ORERROR MADE BY US OR ON OUR BEHALF, OR FROM YOUR RELIANCE ON METRICS ORNOTIFICATIONS AVAILABLE ON OR THROUGH THE APP;
ANYCOMMUNICATION THROUGH THE SERVICE;
ANY DENIAL ORCANCELATION OF YOUR USER ACCOUNT;
ANY ADVERSEEVENTUALITIES, INCIDENTS OR INJURIES TO YOUR AQUARIUM, THE FLORA AND FAUNATHEREIN, OR OTHERWISE, RESULTING FROM PROBLEMS THAT THE SERVICE DID NOT DETECTIN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL,MAXIMUM AND AGGREGATE LIABILITY TO YOU FOR DAMAGES WITH RESPECT TO THE SERVICESOR OTHERWISE UNDER THESE TERMS SHALL BE LIMITED TO US$500(FIVE HUNDRED AMERICAN DOLLARS)
NOTWITHSTANDING ANYTHING HEREIN TO THECONTRARY, WE WILL BE FULLY RELEASED FROM OUR OBLIGATIONS AND LIABILITY TO YOUIF YOU HAVE BREACHED THESE TERMS, ANY OTHER TERMS, RULES OR REGULATIONSAPPLICABLE TO THE SERVICE, OR IF THROUGH YOUR USE OF THE SERVICE, YOU INFRINGEDOR VIOLATED ANY OTHER PERSON’S RIGHTS.
Indemnification
To the maximum extent permitted by law, youwill indemnify and hold harmless at your own expense, the Shanghai OginoBiological Technology Co., Ltd. Parties, from and against any damages, costsand expenses, resulting from any claim, allegation or demand, connected withyour use of the Service, your breach of these Terms or infringement of anyother person’s rights.
ApplicationMarketplace
Your use of the Service may be subject toadditional third party terms and conditions that govern that applicationmarketplace from which you downloaded the App, such as iTunes, Google Play orAmazon App-store for Android. Such third parties are not responsible forproviding maintenance and support services with respect to the App.
The following terms apply if you downloadedan App from Apple’s App Store. You and us agree and acknowledge as follows:
These Terms are concluded between yourselfand us, and not with Apple Inc. (“Apple”). Apple is not responsible for theApp. In the event of a conflict between these Terms and the App Store Terms ofService then the App Store Terms of Service will prevail, solely with respectto the conflicting provisions.
The license granted to you for the App islimited to a non-transferrable license to use the App on any iOS Products thatyou own or control, and as permitted by the Usage Rules set forth in the AppStore Terms of Service, except that such App may be accessed, acquired, andused by other accounts associated with the purchaser via Family Sharing.
In the event of a failure to conform to anyapplicable warranty (if any warranty is applicable), you may notify Apple, andApple will refund the purchase price for the App to you (if you paid any).Apple has no other warranty obligation whatsoever with respect to the App, andany other claims, losses, liabilities, damages, costs or expenses attributableto any failure to conform to any warranty, will not be at Apple’sresponsibility.
Apple is not responsible for addressing anyclaims by you or any third party relating to the App or your possession and/oruse of the App, including (i) product liability claims, (ii) any claim that theApp fails to conform to any applicable legal or regulatory requirement, and(iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim thatthe App or your possession and use of the App infringes that third party’s IPRights, Apple will not be responsible for the investigation, defense,settlement and discharge of any such infringement claim.
You must comply with applicable third partyterms of agreement when using the App (e.g. you must not be in violation ofyour wireless data Services agreement when you use the App).
Apple and Apple’s subsidiaries are thirdparty beneficiaries of these Terms. Upon Your acceptance of these Terms, Applewill have the right (and will be deemed to have accepted the right) to enforcethese Terms against you as a third party beneficiary thereof. You represent andwarrant that (i) you 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 (ii) you are not listed on any U.S.Government list of prohibited or restricted parties.
Governing Law,jurisdiction
Regardless of your place of residence orwhere you access or use the Service from, these Terms and your use of theService will be governed by and construed solely in accordance with the laws ofMainland of the People’s Republic of China, excluding any otherwise applicablerules of conflict of laws.
This agreement is signed in Putuo District,Shanghai
Both the User and us agree that any disputearising from the services shall first be settled through consultations by theParties. If no settlement can be reached through such consultations, eitherParty may submit the dispute to the court of competent jurisdiction over thedistrict where this Agreement is signed.
General
Assignment. Youmay not assign or transfer your rights and obligations under these Termswithout our prior written consent. Any attempted or actual assignment by you,without our prior written consent, shall be null and void. We may assign andtransfer our rights and obligations under these Terms, provided that notice isprovided to you thereafter.
Severability. Ifany provision of these Terms is held to be illegal, invalid, or unenforceableby a competent court, then the provision shall be performed and enforced to themaximum extent permitted by law to reflect as closely as possible, the originalintention of that provision, and the remaining provisions of these Terms shallcontinue to remain in full force and effect.
Interpretation. The section headings in these Terms areincluded for convenience only and shall take no part in the interpretation orconstruing of these Terms. Whenever used in these Terms, the term “Including”,whether capitalized or not, means without limitation to the preceding phrase.All examples and e.g. notations are illustrative, not exhaustive.
Entire agreement. These Terms constitute the entireagreement between you and us concerning the subject matter herein, andsupersede all prior and contemporaneous negotiations and oral representations,agreements and statements.
Waivers. No waiver, concession, extension,representation, alteration, addition or derogation from these Terms by us, orpursuant to these Terms, will be effective unless consented to explicitly andexecuted in writing by our authorized representative.Failure on our part todemand performance of any provision in these Terms shall not constitute awaiver of any of our rights under these Terms.
Relationship. These Terms do not create any agency,partnership, employment or fiduciary relationship between you and us.
CONTACT US
At any time, you may contact us with anyquestion, request, comment or complaint that you may have with respect to theService or these Terms, at:chihiros@chihiros.cn
Effective Date: August 23, 2019.
