Effective date: February 17, 2023
THESE TERMS OF SERVICE INCLUDE A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT GOVERN ANY DISPUTES BETWEEN YOU AND US. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, INCLUDING THE MANDATORY ARBITRATION PROVISION OR CLASS ACTION WAIVER, PLEASE DO NOT USE THE SERVICES.These Terms of Service (these "Terms") are a binding contract between you and data.ai inc., a US company, by itself and/or acting through entities that are legally part of the data.ai family of companies (those entities, the "Related Companies") (data.ai inc. and the Related Companies, collectively, "data.ai," "we," "us," or "our"). You must agree to and accept these Terms, which expressly incorporate by reference the Phone Guardian Privacy Policy ("Privacy Policy"), and any applicable Additional Terms (defined below), in order to use the Phone Guardian mobile app ("App") and website ("Website") (collectively, the "Services"). If you do not agree to these Terms, please do not install, access or use the Services in any manner or in any form.
You affirm that you are at least 16 years old (or such greater age required in your jurisdiction for you to be bound by a contract without guardian consent) and have the legal authority to enter into these Terms. If you are under 16 years of age (or such greater age required in your jurisdiction for you to be bound by a contract without guardian consent), you may not use the Services.
data.ai provides mobile applications and websites that, in addition to other functions, allow you to analyze, modify, and/or optimize certain device characteristics (such as network traffic), protect your mobile data usage, or manage your files. We will collect and use your information only in accordance with our Privacy Policy.
To use the Services, data.ai may, from time to time, require that you comply with additional terms, policies, and conditions, which will be made available via the Website, via the App, or as otherwise provided to you in connection with the Services ("Additional Terms").
By using or accessing the Services or installing the App, you consent and authorize us to collect, on an ongoing basis (regardless of whether you are using or accessing the App), certain data regarding your mobile device, network connections made on your mobile device, your mobile app usage and other data described in the Privacy Policy ("Collected Data") and our use of the Collected Data for any purpose, including for market research on mobile behavior and mobile apps and other purposes described in the Privacy Policy, in all cases subject to the Privacy Policy and applicable laws. To the extent permitted by applicable law, you acknowledge and agree that data.ai owns all right, title and interest in and to the Collected Data which does not constitute Personal Information (as defined in the Privacy Policy).
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data.ai grants you a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Services for your own internal, personal, non-commercial use (subject to these Terms). All rights not expressly granted remain reserved by data.ai. If you are using the App as a mobile application, you may download and install one copy of the App to your supported device, and access the App, solely for your own personal and non-commercial use.
The materials displayed, performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images and illustrations may be protected by copyright and/or other intellectual property laws. When you access the Services, you may have access to data provided by or attributed to third parties, such as links to blogs or reviews ("Third-Party Content"). You also may have access to data provided by or attributed to data.ai, that is not otherwise Third-Party Content ("data.ai Content"). Depending on how you use the Services, you may also submit or upload data via the Services ("User Content") (Third-Party Content, data.ai Content, and User Content, collectively, the "Content"). You promise to abide by all copyright notices, trademark rules, information, and restrictions related to any Content you access through the Services, and agree that you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you: (i) without the prior consent of the owner of that Content or (ii) in a way that violates a third party's rights.
You understand that data.ai owns the Services and the data.ai Content and is the sole and exclusive owner of all right, title and interest in and to any suggestions, ideas, enhancement requests, feedback, or information provided by you or any other party relating to the Services or data.ai Content, and has no obligation to compensate you for any of the foregoing. You agree not to modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services or data.ai Content.
data.ai does not claim ownership in any User Content or Third-Party Content. However, when you use the Services, you represent and warrant that you have the right to upload and use User Content.
You understand that use of the Services may result in additional network traffic and/or affect certain on-device resources, such as battery.
Upon installation of the App, the App will assign your device a unique installation identifier. You shall be responsible and liable for maintaining the confidentiality of your unique identifier and for all activities that occur using such identifier. You may not share your unique identifier with any person for any reason other than sharing it with data.ai when requested by data.ai.
Any Content publicly posted or privately transmitted through the Services (including User Content, by you) is the sole responsibility of the person from whom such Content originated, and you access all such Content at your own risk. You agree that we are not liable for any errors or omissions in that Content or for any damages or loss you incur in connection with such Content. We cannot control, and have no duty to take any action regarding, how you may interpret and use such 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 related to such Content. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that data.ai is not responsible for such risks. data.ai has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, practices, or opinions of any third-party websites or services or any third party that you interact with through the Services. You understand that data.ai does not endorse or sponsor any such third-party websites or services and that data.ai will not and cannot monitor, verify, censor, or edit the content of any third-party website or service. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any such third parties. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party websites or services (as well as your interactions with any organizations or individuals related to such third-party websites or services).
If there is a dispute between users of our Services, or between users and any third party, you agree that data.ai is under no obligation to become involved. If you have objections to copyrighted Content or material made available on or through the Services, you should review the data.ai Copyright Dispute Policy for more information. In the event that you have a dispute with one or more other users, you release data.ai and the officers, employees, agents, and successors of data.ai from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
You represent, warrant, and agree that you will not (directly or through a third party) use or interact with the Services (including submission of User Content) in a manner that:
Violation of any of the foregoing is grounds for termination of your right to use or access the Services.
As part of your use of the App, you may receive push notifications or other types of messages directly sent to you inside the App ("Push Messages"). You have control over the Push Messages settings and can opt in or out of these Push Messages through the App or through the mobile device's operating system. Please be aware that messaging fees may apply depending on the message plan you have with your wireless carrier.
We may, at any time, suspend or discontinue any part of the Services, introduce new features, impose limits on certain features or restrict access to part or all of the Services. Similarly, we reserve the right to remove and/or block any Content from the Services at any time for any reason (including, but not limited to, if someone alleges you contributed such Content in violation of these Terms).
You can stop using the App at any time by deleting or uninstalling the App. If you encounter issues deleting or uninstalling the App, please contact us at b2c-support@data.ai for assistance.
We reserve the right, in our sole discretion, to terminate your access to and/or use of the Services or any portion thereof at any time, without notice. Without limiting the foregoing, we shall have the right to immediately terminate or suspend any access to and use of the Services without notice, in the event of any conduct by you or which we, in our sole discretion, considers to be unacceptable, or in the event of any breach by you of these Terms. We may investigate any reported violation of our policies and complaints and take any appropriate action we deem appropriate at any time, including without limitation, suspension or termination of access to and/or use of the Services. Upon termination or expiration of your access and use of the Services, you shall cease all use of and access to the Services, and destroy any and all copies, full or partial, of the App. In addition, we may, in our sole discretion and at any time, discontinue providing or limit access to the Services.
data.ai reserves the right to: (i) investigate any suspected breaches of the Services' security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms, (iii) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, and (iv) prosecute violators of these Terms.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
data.ai understands the importance of confidentiality and privacy regarding your information. Please see our Privacy Policy for a description of how we may collect, use and disclose your information in connection with the Services.
We reserve the right to charge for part or all of the App at any time. We will notify you before any such fees become applicable.
DATA.AI MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT, INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED IN THE SERVICES. DATA.AI EXPRESSLY DISCLAIMS LIABILITY FOR ANY ERRORS OR OMISSIONS IN THE MATERIALS CONTAINED IN THE CONTENT OR IN THE SERVICES. DATA.AI RESERVES THE RIGHT TO MAKE CHANGES IN THE POLICIES, PRODUCTS AND SERVICES DESCRIBED IN THE SERVICES AT ANY TIME WITHOUT NOTICE.
SOME LAWS DO NOT ALLOW CERTAIN DISCLAIMERS, SO SOME OR ALL OF THESE DISCLAIMERS MAY NOT APPLY TO YOU.
THE SERVICES, THIRD-PARTY CONTENT, AND DATA.AI CONTENT ARE PROVIDED STRICTLY ON AN "AS-IS" BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY DATA.AI (INCLUDING ITS RELATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS AND ASSIGNS) AND ITS LICENSORS.
WITHOUT DEROGATING THE FOREGOING, DATA.AI MAKES NO REPRESENTATION, WARRANTY OR GUARANTY THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, BE ERROR-FREE, OPERATE WITHOUT DISRUPTION, DELAYS, OR LIMITATIONS OR BE IMMUNE FROM UNAUTHORIZED ACCESS OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DATA.AI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE SERVICES OR DATA.AI CONTENT IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL DATA.AI BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF US $100, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS AND/OR EXCLUSIONS. IN SUCH CASES, DATA.AI'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. Note that some jurisdictions do not allow limitations of liability or may place limitations on our ability to limit our liability to you, so some or any of the foregoing limitations may not apply to you.
You agree to indemnify, defend and hold data.ai, its officers, agents, employees, and partners harmless from and against any and all complaints, claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to third-party claims involving: (a) your access to and use of the Services (including any actions taken by a third party using your access to and use of the Services), data.ai Content, or Third-Party Content; (b) your User Content; and (c) your violation of these Terms.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without data.ai's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without your consent, in whole or in part, except with regard to the rights and obligations pursuant to the arbitration and related dispute resolution provisions herein.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND DATA.AI TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM DATA.AI, INCLUDING WAIVING YOUR RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
MOST CONCERNS CAN BE RESOLVED QUICKLY BY CONTACTING DATA.AI. IN THE UNLIKELY EVENT THAT WE ARE UNABLE TO RESOLVE YOUR CONCERNS, WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION, OR SMALL CLAIMS COURT AS SET FORTH BELOW, INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO THE TERMS OF THESE TERMS.
ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS TO THE MAXIMUM EXTENT PERMITTED BY LAW; CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ARBITRATIONS ARE NOT PERMITTED.
USERS WHO DO NOT WISH TO BE SUBJECT TO THE ARBITRATION REQUIREMENTS IN THIS AGREEMENT MAY OPT-OUT WITHIN 30 DAYS OF ACCESSING THE SERVICES BY SENDING WRITTEN NOTICE OF THEIR REQUEST TO OPT-OUT TO LEGAL@DATA.AI.
FOR PURPOSES OF THIS ARBITRATION PROVISION, YOU, ON THE ONE HAND, AND DATA.AI, ON THE OTHER HAND AGREE THAT ALL DISPUTES, CONTROVERSIES AND CLAIMS RELATED TO THESE TERMS (INCLUDING ANY CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THESE TERMS), THE SERVICES (INCLUDING THE CONTENT), OR ANY DATA.AI GOOD OR SERVICE (COLLECTIVELY "DISPUTES"), SHALL BE FINALLY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION AS DESCRIBED IN THIS SECTION, WHICH MAY BE INITIATED BY YOU OR US BY SENDING A WRITTEN NOTICE REQUESTING ARBITRATION TO THE OTHER PARTY. ANY ELECTION TO ARBITRATE BY ONE PARTY SHALL BE FINAL AND BINDING ON THE OTHER.
YOU EXPRESSLY AGREE THAT ALL DISPUTES SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. ("JAMS"), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS. YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.
PAYMENT OF ARBITRATION COSTS WILL BE GOVERNED BY THE JAMS'S FEE SCHEDULE, UNLESS YOU ARE ABLE TO SHOW THAT YOUR PORTION WILL BE PROHIBITIVE AS COMPARED TO LITIGATION COSTS, IN WHICH CASE DATA.AI WILL PAY AS MUCH OF YOUR ARBITRATION COSTS AS THE ARBITRATOR DEEMS NECESSARY TO PREVENT THE ARBITRATION FROM BEING COST-PROHIBITIVE AS COMPARED TO LITIGATION COSTS. DATA.AI ALSO RESERVES THE RIGHT IN ITS SOLE AND EXCLUSIVE DISCRETION TO ASSUME RESPONSIBILITY FOR ALL ARBITRATION COSTS IMPOSED BY JAMS. EACH PARTY AGREES TO PAY ITS OWN ATTORNEYS' FEES AND EXPENSES UNLESS THERE IS A GOVERNING STATUTORY PROVISION THAT REQUIRES THE PREVAILING PARTY TO BE PAID ATTORNEYS' FEES AND EXPENSES.
THE ARBITRATION MERITS HEARING SHALL BE CONDUCTED IN SAN FRANCISCO, CALIFORNIA, USA, UNLESS THE PARTIES AGREE OTHERWISE IN WRITING.
ALL ISSUES ARE FOR THE ARBITRATOR TO DECIDE, INCLUDING THE SCOPE AND ENFORCEABILITY OF THIS ARBITRATION PROVISION AS WELL AS THESE TERMS' OTHER TERMS AND CONDITIONS, AND THE ARBITRATOR SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ANY SUCH DISPUTE RELATING TO THE SCOPE AND ENFORCEABILITY OF THIS ARBITRATION PROVISION OR ANY OTHER PROVISION OF THESE TERMS INCLUDING, BUT NOT LIMITED TO, ANY CLAIM THAT ALL OR ANY PART OF THIS ARBITRATION PROVISION OR THESE TERMS ARE VOID OR VOIDABLE. HOWEVER, IF PUTATIVE CLASS OR REPRESENTATIVE CLAIMS ARE INITIALLY BROUGHT BY EITHER PARTY IN A COURT OF LAW, AND A MOTION TO COMPEL ARBITRATION IS BROUGHT BY ANY PARTY, THEN THE COURT SHALL DECIDE WHETHER THESE TERMS PERMIT CLASS PROCEEDINGS. FOR THE AVOIDANCE OF DOUBT, THE COURT AND ARBITRATOR SHALL BE BOUND BY THE TERMS OF THESE TERMS, INCLUDING WITH REGARD TO THE CLASS AND REPRESENTATIVE WAIVER PROVISIONS. IN ANY ARBITRATION, THE ARBITRATOR SHALL FOLLOW THE APPLICABLE LAW AS SET FORTH BELOW. THE ARBITRATOR SHALL NOT HAVE THE POWER TO COMMIT MANIFEST ERRORS OF LAW OR LEGAL REASONING, AND ANY AWARD RENDERED BY THE ARBITRATOR THAT EMPLOYS A MANIFEST ERROR OF LAW OR LEGAL REASONING MAY BE VACATED OR CORRECTED BY A COURT OF COMPETENT JURISDICTION FOR ANY SUCH ERROR. THESE TERMS ARE GOVERNED BY AND WILL BE CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF. CASE MANAGEMENT AND OTHER HEARINGS SHALL BE HEARD VIA TELEPHONE UNLESS OTHERWISE AGREED TO. THE ARBITRATOR'S AWARD SHALL BE FINAL AND BINDING ON ALL PARTIES AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE EXTENT THE DISPUTE ARISES FROM: (A) A VIOLATION OF EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS IN ANY MANNER; (B) ANY CLAIM RELATED TO, OR ARISING FROM, ALLEGATIONS OF THEFT, PIRACY, UNAUTHORIZED USE OR A VIOLATION OF THE UNITED STATES COMPUTER FRAUD AND ABUSE ACT (OR ANY INTERNATIONAL EQUIVALENT); AND/OR (C) ANY CLAIM FOR EQUITABLE RELIEF; THEN YOU AND DATA.AI AGREE THAT A PARTY MAY SEEK INJUNCTIVE REMEDIES (OR AN EQUIVALENT TYPE OF URGENT LEGAL RELIEF) IN A STATE OR FEDERAL COURT IN SAN FRANCISCO, CALIFORNIA, AND BOTH PARTIES CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN SUCH COURTS FOR SUCH NON-ARBITRABLE DISPUTES. IN ADDITION TO THE FOREGOING, EITHER PARTY MAY ASSERT AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT FOR DISPUTES THAT ARE WITHIN THE SCOPE OF SUCH COURT'S JURISDICTION IN LIEU OF ARBITRATION.
THE PARTIES AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
THIS SECTION REGARDING ARBITRATION MAY NOT APPLY TO USERS IN THE MEMBER STATES OF THE EUROPEAN ECONOMIC AREA TO THE EXTENT EXCLUDED UNDER APPLICABLE LOCAL MEMBER STATE LAWS.
The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.
You and data.ai agree that these Terms, any Additional Terms, and our Privacy Policy, are the complete and exclusive statement of the mutual understanding between you and data.ai and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of data.ai, and do not have any authority to bind data.ai in any respect whatsoever.
We reserve the right to update these Terms at any time and encourage you to review them periodically. You agree that continued use of the Services after changes to these Terms have been posted signifies your acknowledgement and consent to such updated Terms. If you do not agree to the updated Terms, you must terminate your use of the Services (see "Termination and Survival," above).
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