Welcome to the WAVE Electronics Platform.
BY ACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
- ABOUT THE TERMS
- ABOUT THE PLATFORM
- REGISTERING FOR AN ACCOUNT
- FEES AND PAYMENT TERMS
- USER CONDUCT GUIDELINES
- INTELLECTUAL PROPERTY OWNERSHIP
- THIRD PARTY TERMS
- APPS DOWNLOADED FROM THIRD PARTY APP STORES
- WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
- GOVERNING LAW & DISPUTE RESOLUTION
1.1 KEY TERMS
- “App” refers to the downloadable BoxTrax mobile application owned and operated by Wave. References to the “App” include any and all features, functionality, tools and content available on or through each such application.
- “Platform” refers, collectively, to the Website, App, and other technology provided by Wave.
- “Your Content” refers to videos, text, photos, information and other content captured, recorded, streamed, stored, shared or otherwise made available or caused to be made available by you and all of the Users under both your administrative and corporate sub accounts.
- “Users” means any and all persons that access or use the Platform. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Website or App, and accessing or using the content.
- “Website” refers to the ecommerce website owned or operated by Wave currently located at www.wave-electronics.com). References to the “Website” include any and all features, functionality, tools and content available on or through each such website.
- “Wave,” “we,” or “us” refer to Wave Electronics, Inc. and our officers, directors, employees, contractors and agents.
1.2 Platform Rules and Supplemental Terms
- YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
- LIMITATIONS OF OUR LIABILITY TO YOU; AND
- A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE PLATFORM IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
1.3 Amendment of Terms
Wave reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other modification, amendment, supplement of or to the Terms will be binding on Wave unless it is in writing and signed by an authorized representative of Wave.
1.4 Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
2.1 License to Use
Subject to your compliance with the Terms, Wave grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform, including the right to download and install a copy of the App on each mobile device that you own or control, for your own internal business purposes only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Platform as provided by Wave, in the manner permitted by the Terms.
2.2 App Set-Up and Operating Requirements
In order to use the App, you must:
- have internet access (e.g., WiFi or 3G /4G with a data plan);
- download the App on your smartphone or tablet;
- register for an Wave account (as set forth in more detail below in the “Accounts” section below); and
- provide and maintain complete, accurate and up-to-date account information.
If any of the above requirements are not met, you will not be able to use some or all of the App.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
- WAVE DOES NOT AND CANNOT GUARANTEE THAT THE PLATFORM WILL BE CONTINUOUS OR ERROR-FREE.
- IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PLATFORM IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PLATFORM.
- YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE PLATFORM AND YOUR CONTENT. ABUSE OF THE PLATFORM MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.4 Modifications and Updates to the Platform
Wave reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or and content, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of Your Content at our sole discretion at any time without prior notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that Wave has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
2.5 International Users
The Platform is controlled and operated within the United States and is not intended for use outside of United States. You are hereby prohibited from accessing or using the Platform from any territory where the Platform or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the Platform from a location outside United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
3.1 Account Registration
While certain areas of the Website are publicly available, you must register for a user account before you are able to purchase products, or use the App. You may register to create an account directly via the Website and/or App.
Designated administrators will set up a primary account, and will designate the individuals who are eligible to sign up for subaccounts. Administrators for each client will have access to manage and view activities associated with the subaccounts registered to that client. (For simplicity, both accounts and subaccounts will be referred to hereafter as “accounts”).
3.2 Account Set-Up
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you and your Users create an account or subaccount, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Wave account or any other account that you may connect to your Wave account. You agree not to disclose your username or password to any third party, and you agree to immediately notify Wave of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. Wave cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.3 Account Suspension and Cancellation
You may cancel your account or any corporate subaccounts at any time.
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Platform at any time for any reason, and (ii) screen or delay the posting or delivery of Your Content.
Wave reserves the right to suspend or terminate your account or your access to the Platform if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, out dated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. We also reserve the right to cancel accounts of Users who fail to comply with the Terms, including the terms and conditions regarding User conduct, as set forth in the “General User Conduct” section below and elsewhere in the Terms.
If your account is deactivated or cancelled, Wave will have the right, but not the obligation to delete Your Content.
If Wave has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Wave’s reasonable satisfaction.
If Wave is unable to successfully charge your credit card or payment account for fees due, or invoices are not paid in full when due, we reserve the right to restrict or suspend access to your account, or terminate your account (including, any employee accounts associated with your account). If you terminate your account for any reason or if we terminate your account due to your breach, such termination will be effective immediately, and you will be immediately billed for any unbilled fees incurred prior to the effective date of termination. You will not receive a refund for any amounts you already paid for that billing period. Further, you agree to reimburse us for any collection costs and interest for any overdue amounts.
We may contact you via email regarding your account, for example, in connection with a problem with your credit card or payment account.
4.2 No refunds
Except as stated in Wave’s Business Policies, or as Wave otherwise agrees or states in writing, all fees and charges are nonrefundable.
4.3 Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the Platform through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that Wave is not liable in any way for any third party charges.
Any time you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below.
You are not authorized to access or use the Platform:
- to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
- to collect, store or use any information from or about another User, other than to provide aid to such User or as otherwise authorized and intended by such User;
- to “stalk” or harass any other User;
- to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- if you are not able to form legally binding contracts (for example, if you are under 18);
- if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; and
- for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
- access, copy, distribute, share, publish, use or store, or prepare derivative works from any content that belongs to Wave, another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
- share your user ID or transfer your account to another party without our consent;
- circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
- access, search, collect information from, or otherwise interact with the Platform by “scraping,” “crawling” or “spidering” the Platform, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by Wave, unless you have been specifically authorized to do so in a separate agreement with Wave;
- use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, Wave’s name, any Wave trademark, logo or other proprietary information, or any of the foregoing owned by a third party and licensed to Wave, without Wave’s or such third party’s express written consent;
- interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
- access, tamper with or use non-public areas of any of the Platform, Wave’s computer systems, or the technical delivery systems of Wave’s providers;
- probe, scan, or test the vulnerability of any system or network of Wave or its providers, or breach or circumvent any security or authentication measures of such system or network;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Wave or any of Wave’s providers or any other third party to protect the Platform;
- forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Platform to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
- export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
- otherwise abuse the Platform or breach the Terms; or
- attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
5.1 Responsibility for Your Content
Ultimately, all Your Content, whether publicly posted or privately transmitted, is your sole responsibility. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any of Your Content. Under no circumstances will Wave be liable in any way for Your Content, including, but not limited to, any errors or omissions in Your Content, or any loss or damage of any kind incurred as a result of Your Content. We may, but are not required to monitor or control Your Content as captured, recorded, uploaded, streamed, shared or stored on or through the Platform, and we cannot take responsibility for Your Content. Any use or reliance on Your Content is at your own risk.
6.1 The Platform
The Platform, including the Website and App, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform, and all intellectual property rights therein are the exclusive property of Wave and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Wave (the “Wave Marks”) are the property of Wave, and that you are not permitted to use the Wave Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Wave or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Wave’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Wave or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2 Your Content
By capturing, recording, uploading, streaming, sharing or storing Your Content, you hereby grant Wave a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publish and display Your Content in any and all media as necessary to provide the Platform to you, including, customer support services, and otherwise operate the Platform, including for product development and de-bugging purposes.
You agree that this license includes the right for Wave to provide, promote, and improve the Platform and Service and to make Your Content available to other companies, organizations or individuals who have a business relationship with Wave (“partner”) for such purposes, subject to our terms and conditions for such use. Such additional uses by Wave, or other companies, organizations or individuals who partner with us, may be made with no compensation paid to you with respect to Your Content.
We may modify or adapt Your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to Your Content as are necessary to conform and adapt that content to any requirements or limitations of any networks, devices, services or media.
Wave does not claim any ownership rights in Your Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to Wave under these Terms.
You acknowledge and agree that you are solely responsible for Your Content, and for any consequences thereof, including the use of Your Content by other users and our third party partners.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to Your Content, and that neither Your Content, nor Wave’s use of Your Content (or any portion thereof) on or through the Platform will infringe, misappropriate or violate the rights of any person or entity, including patent, copyright, trademark, trade secret, moral rights, industrial rights, database rights or other proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at [email protected]. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Wave. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Wave or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Wave all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Wave’s rights in such improvements, enhancements and modifications.
The Platform may also provide links to third-party websites, resources or services. You acknowledge and agree that Wave is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Wave of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
Our App may be available for download from third party app stores which are not owned or operated by Wave. When downloading, installing, accessing, using or browsing the App, you must comply with any applicable third party terms and conditions, including any End User License Agreement, your mobile device agreement or any wireless data service agreement, and ensure that your use of the App is not in violation of any such terms or conditions.
Without limiting the foregoing, any Apps accessed through or downloaded from Apple's App Store (an "App Store Download") may only be used (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system), and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms and Conditions.
Without limiting the foregoing, the following applies to App Store Downloads:
- You acknowledge and agree that (i) these Terms are between you and Wave only, and not Apple, and (ii) Wave, not Apple, is solely responsible for the App Store Download and content thereof. Your use of the App Store Download must comply with the App Store Terms and Conditions.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Download.
- In the event of any failure of the App Store Download to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Download to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Download. As between Wave and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Wave.
- You acknowledge that, as between Wave and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Download or your possession and use of the App Store Download, including: (i) product liability claims; (ii) any claim that the App Store Download fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You acknowledge that, in the event of any third-party claim that the App Store Download or your possession and use of that App Store Download infringes that third party's intellectual property rights, as between Wave and Apple, Wave, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You acknowledge and agree that Apple and its subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Download, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Download against you as a third party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third party terms and conditions when using the App Store Download.
9.1 Warranties by Users
You represent and warrant to Wave that:
- you have the power and authority to accept and agree to the Terms;
- you own or control all of the rights necessary to grant the rights and licenses granted herein;
- you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party in connection with Your Content or otherwise in connection with your access to or use of the Platform;
- the exercise by Wave of the rights granted by you hereunder will not cause Wave to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
- all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, WAVE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY CONTENT.
9.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
- THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM IS AND REMAINS WITH YOU.
- WITHOUT LIMITING THE FOREGOING, WAVE DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF OR INABILITY TO USE THE PLATFORM.
- YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE PLATFORM, AND SUBMITTING AND TRANSMITTING YOUR CONTENT ARE DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE WAVE AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
- IN NO EVENT WILL WAVE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WAVE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, WAVE’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
9.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WAVE AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION IX THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold Wave its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all content and features, functionality, and tools available on and through the Website and App, (ii) Your Content, (iii) any interactions with any other User, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.
9.7 Obligation to Defend
You agree that, at Wave’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Wave may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Wave (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
9.8 No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND WAVE HAVE AGAINST EACH OTHER ARE RESOLVED.
10.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of New Jersey without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Houston, Texas before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
10.3 Jurisdiction and Venue
Subject to the above arbitration provisions, you and Wave agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform (collectively, “Disputes”) in the federal or state courts located in Houston, Texas and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that Wave retains the right to submit a Dispute to any court of competent jurisdiction. Wave also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
10.4 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST WAVE ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND WAVE OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
10.5 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and Wave. We will notify you of amendments to this section by posting the amended Terms on www.wave-electronics.com. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Wave in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
11.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. Wave may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
11.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
11.5 Survival of Terms
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by Wave (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website or via the App. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
11.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
In the Terms, unless the context requires otherwise: (i) ”herein,” “hereof,” “hereunder,” “hereto,” and similar terms refer to the Terms collectively and as a whole, and not merely to the specific section, paragraph or clause in which the term appears, (ii) ”or” connotes any combination of all or any of the items listed, and (iii) ”including” (and any of its derivative forms) means “including but not limited to.”
11.13 Contact Us
If you have any questions or concerns, please contact Wave at [email protected].
You can also write to us at:
WAVE Electronics, Inc.
8648 Glenmont Drive, Suite 130
Houston, TX 77036
11.14 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Platform or requests to receive further information regarding use of the Platform may be sent to the above address or to [email protected].
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.