MankaSmart User Agreement
Overview, Eligibility, Customer Service, Term and Termination
Access to Services
Agreed Usage and Limitations Of MankaSmart Services
Limitations Of MankaSmart Services Due to Third Parties.
Ownership and Intellectual Property
Limitation of Liability
Fees and Payment
Disputes and Arbitration
Digital Millennium Copyright Act
AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
MankaSmarting Inc. and its subsidiaries and affiliates (collectively, “MankaSmart”) provides:
(1) These Terms of Service (“Terms”) govern your access to and use of the Services. These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you. The term “Services” means the Mobile Apps, and Subscription Services. A MankaSmart user account that may be accessed through mobile apps;
(2) services accessible through the mobile apps;
(3) software that may be downloaded to your smartphone, tablet, laptop and desktop to access services (“Mobile Apps”);
(4) subscription services, including services that can be accessed using the Mobile Apps (“Subscription Services”), all for use in conjunction with MankaSmart hardware products (“Products”) and in other ways that MankaSmart provides. Some MankaSmart products and Services can be used together or in ways that integrate with products and services from third parties.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES.
Overview, Eligibility, Customer Service, Term and Termination
(a)Overview and Relation to Other Agreements.
These Terms govern your use of the Services. Your purchase of any Product is governed by the limited warranty provided with that Product (“Limited Warranty”) and may further be governed by the Terms & Conditions of Sale. The software embedded in the Product (and any updates thereto) (“Product Software”) is licensed and governed by the End User Licensing Agreement. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, or rules, and the Privacy Statement (“Privacy Statement”), are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services.
You may use the Services only if you can form a binding contract with MankaSmart, and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. You must be a resident of the United States and 18 years of age or older to use the App. By registering for an Account, you certify that you are 18 years of age or older and a United States resident. Any use or access to the Services by anyone under the age of 18 is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by MankaSmart.
If you have any questions or concerns regarding the Products, the Services, or these Terms, please contact MankaSmart. (d)Term and Termination.
These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, MankaSmart may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if MankaSmart in good faith believes that you have used the Services 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 Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with MankaSmart.
(e)Effect of Termination.
Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
To use the Services, you must register for a user account (“Account”) and provide certain information about yourself as prompted by the applicable registration form. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Services does not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. You agree to immediately notify MankaSmart of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. MankaSmart is not liable for any loss or damage arising from your failure to comply with the above requirements.
Access to Services
(a)Access and Use.
Subject to these Terms, MankaSmart grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by using the Mobile Apps in connection with, and solely for the purpose of, controlling and monitoring the Products installed on your property or otherwise accessing a service explicitly provided by MankaSmart for your use (the “Permitted Purpose”).
(b) Interface to Third Party Products and Services.
(c) Automatic Software Updates.
MankaSmart may from time to time develop patches, bug fixes, updates and other modifications to improve the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Product. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any Updates MankaSmart provides. Your continued use of the Services and the Product is your agreement – (i) to these Terms with respect to the Services, and (ii) to the End User License Agreement with respect to updated Product Software.
If MankaSmart provide patches, bug fixes, updates, upgrades and other modifications, supplements, or add-on components to the App after you download it (collectively, “Updates”), these Terms will apply to the Updates unless MankaSmart provides additional terms along with the Update (“Additional Terms”), in which case those Additional Terms will apply to the Update. You agree that MankaSmart may automatically check your version of the App and send Updates to the App and may release subsequent versions of the App and require you to the use the most current version.
(d)Certain materials may be displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, video, images, and illustrations (“Content”).
The Content also includes information that you and other users provide us in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Some content may be visible to others (for example, the Service allows you to upload, post, or otherwise share video content). You may also post feedback, comments, questions, or other information on the website. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to MankaSmart all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. MankaSmart reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
(e) Open Source.
Certain items of independent, third party code may be included in the Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (v) you agree not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handhold mobile device, data, the Services, the Product, the Product Software, or any other system, device or property; (vi) you agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by MankaSmart; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Services. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
MankaSmart cares about the integrity and security of your personal information. However, MankaSmart cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(h) Privacy Statement.
Please review the Privacy Statement. The Privacy Statement describes practices regarding the information that MankaSmart may collect from users of the Products and Services, including any Content or User Submissions.
(i) Access Outside Certain Countries.
Although the website is accessible worldwide, the Products and Services provided or accessed through mobile apps are not available to all persons or in all countries. If you choose to access the mobile apps from outside a country, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the mobile apps are not designed for use in a non-Target Country and some or all of the features of the mobile apps may not work or be appropriate for use in such a country. To the extent permissible by law, MankaSmart accepts no responsibility or liability for any damage or loss caused by your accessing or use of the mobile apps or MankaSmart Products in a non-Target Country. You will be bound by these Terms wherever you access or use the mobile apps or use the Services.
MankaSmart reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that MankaSmart will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
Agreed Usage and Limitations of MankaSmart Services
(a)Intended Use of MankaSmart Services.
The Services are intended to be accessed and used for non-time-critical information and control of MankaSmart products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond MankaSmart’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that MankaSmart is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.
(b)No Life-Safety or Critical Uses of the Services.
You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. MankaSmart makes no warranty or representation that use of the Products or Services with any third-party product or service will affect or increase any level of safety. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM -- MankaSmart WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, the MankaSmart Customer Care and Support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
(c) Temporary Suspension.
The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. MankaSmart does not offer any specific uptime guarantee for the Services.
(d) Energy Savings and other Benefits.
Unless explicitly promising a “guarantee,” MankaSmart does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Products or Services or any feature of them. Actual energy savings and monetary benefits vary with factors beyond MankaSmart’s control or knowledge. From time to time, MankaSmart may use the Services to provide you with information that is unique to you and your energy usage and suggests an opportunity to save money on energy bills if you adopt suggestions or features of the Product or Services. We do this to highlight an opportunity based on our analysis and information about you and your household. You acknowledge that these promotions are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from MankaSmart if your savings differ.
The Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required from some functionality); (iv) always-on broadband Internet access in your home; and (v) other system elements that may be specified by MankaSmart. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that MankaSmart may activate Wifi on your smart phone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with MankaSmart Products connected to the same MankaSmart account, and enable certain features (such as Air Link Auto).
(f) Reliability of Notifications.
You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR MankaSmart PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. The information provided by MankaSmart on what to do in an emergency is based on authoritative safety sources, but there is no way for MankaSmart to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
(g)The Services provide you information (“Product Information”) regarding the Products in your home and their connection with other products and services.
All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information in the home.
(h)All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such Content originated and MankaSmart will not be liable for any errors or omissions in any Content.
MankaSmart cannot guarantee the identity of any other users with whom you may interact in the course of using the Services.Additionally, we cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
(i)You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner
(i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of MankaSmart; (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your MankaSmart Account or anyone else’s Account (such as allowing someone else to log in to the Services as you; (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlMankaSmartng ideas or information of or relating to the Services. (j)Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. You agree that you (and not MankaSmart) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services, including but not limited to (i) any laws relating to the recording or sharing of video or audio content that includes third parties, or (ii) any laws requiring notice to or consent of third parties with respect to your use of MankaSmart Products.
Limitations Of MankaSmart Services Due to Third Parties.
MankaSmart Services rely on or interoperate with third party products and services. These third party products and services are beyond MankaSmart’s control, but their operation may impact or be impacted by the use and reliability of the MankaSmart Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the MankaSmart Services operate, and (iii) MankaSmart is not responsible for damages and losses due to the operation of these third party products and services.
(b) Third Party Service Providers Used By MankaSmart.
You acknowledge that MankaSmart uses third party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization, and communication through Amazon Web Services, and mobile device notifications through mobile operating system vendors and mobile carriers. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES.
(c)Equipment, ISP, and Carrier.
(d) Third Party Website Links and Referrals.
The website may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. MankaSmart provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites is at your own risk.
You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and MankaSmart and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(f) Third Party Products and Services that Work With MankaSmart Services.
MankaSmart may provide the opportunity for you to interface to Third Party Products and Services, for example through the Works with MankaSmart platform. Although the Works with MankaSmart platform is offered by MankaSmart, you acknowledge that Third Party Products and Services that you connect to your account or interface with are not MankaSmart products and services and you acknowledge and agree that MankaSmart does not control, and that these Terms do not apply to, any Third Party Products and Services. Use of any Third Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third Party Products and Services. You acknowledge and agree that MankaSmart makes no representation or warranty about the safety of any Third Party Products or Services. Accordingly, MankaSmart is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the Third Party with any questions about their Products and Services.
(g)Release Regarding Third Parties.
MankaSmart is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. MankaSmart hereby disclaims and you hereby discharge, waive and release MankaSmart and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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 PROVISION IN ANY OTHER JURISDICTION.
Ownership and Intellectual Property
You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product, Product Software, and Services (i.e., Mobile Apps) are owned by MankaSmart or its affiliates or our licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. MankaSmart and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms. You may only copy parts of the Services (including this Site) on to your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of MankaSmart. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions, MankaSmart retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
You may choose to, or MankaSmart may invite you to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place MankaSmart under any fiduciary or other obligation. MankaSmart may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that MankaSmart does not waive any rights to use similar or related ideas previously known to MankaSmart, developed by its employees, or obtained from other sources.
You hereby grant us with a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to access, display, or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you the Services and as directed by you. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by you. For clarity, the foregoing license grant to MankaSmart does not affect your ownership of or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
You agree to defend, indemnify, and hold YI, its directors, officers, employees, agents, partners, suppliers, and licensors harmless and will keep them indemnified from any claim or demand, including reasonable attorneys’ fees, relating to, arising from, or allegedly arising from (i) Your Content, your use of the App, and activities occurring under your Account; (ii) any violation of these Terms; or (iii) your violation of any other party’s rights or applicable law. MankaSmart reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify MankaSmart and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without MankaSmart’s prior written consent. MankaSmart will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
(a)THE WARRANTY FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE EULA, RESPECTIVELY. (b) THE SERVICES (I.E., MOBILE APPS AND MYENERGY.COM) ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND MankaSmart AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. (c) MankaSmart AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MankaSmart OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY. (d)MankaSmart DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE WORKS WITH MankaSmart PLATFORM) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND MankaSmart WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES. (e)WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY MankaSmart YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS. (f)MankaSmart MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND MankaSmart WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. MankaSmart MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
Limitation of Liability
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) MankaSmart 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 SERVICES OR THE PRODUCTS, EVEN IF MankaSmart KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) MankaSmart’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO MankaSmart OR MankaSmart’S AUTHORIZED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. MankaSmart DISCLAIMS ALL LIABILITY OF ANY KIND OF MankaSmart’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL MankaSmart BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
The disclaimer and limitation of warranties and the exclusion of damages under Sections 11 and 12 are independent of your exclusive remedies in these Terms and the disclaimer and limitations of warranties and exclusion of damages survive even if the exclusive remedies fails of their essential purpose or otherwise are deemed unenforceable. Each of the limitations in Sections 11 and 12 apply without regard to whether loss, liability, or damage arise from (i) breach of contract, (ii) breach of warranty, (iii) fault or tort, including negligence and misrepresentation, (iv) strict liability, or (v) any other cause of action, to the extent the exclusions and limitations are not prohibited by applicable law.
Fees and Payment
Certain Services may be provided for a fee. You shall pay all applicable fees in connection with the Services selected by you in accordance with the Terms of Sale.
Disputes and Arbitration
(a)Contact MankaSmart First.
If a dispute arises between you and MankaSmart, our goal is to learn about and address your concerns. You agree that you will notify MankaSmart about any dispute you have with MankaSmart regarding these Terms or our Products or Services by contacting MankaSmart.
You and MankaSmart agree, subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), to submit any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further you agree 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 provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of the Service. Subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), any dispute or claim made by you against us or us against you arising out of or relating to these Terms or your use of the Services (whether based in 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.
You must first present any claim or dispute to us by contacting MankaSmart to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to MankaSmart. MankaSmart may request arbitration against you at any time after it has notified you of a claim or dispute in accordance with clause 11(f) (Notifications). 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 this agreement. The place of any arbitration will be San Francisco, California, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of or contrary to what this agreement provides, order consolidation or arbitration on a class wide or representative basis, award punitive or consequential 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 MankaSmart nor the arbitrator 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.
(d)No Class Actions.
There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class action or consolidated basis or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to, as a private attorney general).
(e)Fees and Expenses.
All administrative fees and expenses of arbitration will be divided equally between you and MankaSmart. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(f)YOU MUST CONTACT MankaSmart WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
Digital Millennium Copyright Act
(a)If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (b)Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) Your physical or electronic signature; (ii) Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled; (iii) A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and (iv) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. (c)If a counter-notice is received by the Copyright Agent, MankaSmart may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at MankaSmart's sole discretion.
(a)Changes to these Terms.
MankaSmart reserves the right to make changes to these Terms. We'll post notice of modifications to these Terms on this page. You should ensure that you have read and agree with our most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms.
(b) Protection of Confidentiality and Intellectual Property Rights.
Notwithstanding the foregoing, MankaSmart may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(c) )Governing Law.
The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from app, your country's laws will apply to such disputes related to these terms. Otherwise, you agree that these Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Santa Clara County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
These Terms constitute the entire agreement between you and MankaSmart regarding the use of the Services. Any failure by MankaSmart to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
The obligations in Sections 3(d), 4, 6, 7, 8, 9, 11, and 13 will survive any expiration or termination of these Terms.
These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without MankaSmart’s prior written consent. These Terms may be assigned by MankaSmart without restriction. These Terms are binding upon any permitted assignee.
MankaSmart may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on www.MankaSmart.com. MankaSmart is not responsible for any automatic filtering you or your network provider may apply to email notifications.
(h) Copyright/Trademark Information.
Copyright © MankaSmart Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of MankaSmart or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of MankaSmart or such respective holders. MankaSmart reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
Copyright © MankaSmart Inc, All rights reserved.
Please visit MankaSmart.com for MankaSmart's address.