Last Updated: November 16, 2017
The websites located at www.sphero.com, support.sphero.com, edu.sphero.com, and each sub-site thereof (collectively the “Site”) are copyrighted works belonging to Sphero, Inc. (“Sphero”, “we”, and “our”). Sphero offers its products and Services, processes your product reservation, and completes your product purchase transaction (collectively, and with all other services provided through the Site, the “Services”) on the Site. Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, each of which will be posted on the Service or Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement.
1.1 Account Creation.
1.2 Account Responsibilities.
You are responsible for maintaining the confidentiality of your Sphero Account login information and are fully responsible for all activities that occur under your Sphero Account. You agree to immediately notify Sphero of any unauthorized use, or suspected unauthorized use of your Sphero Account or any other breach of security. Sphero cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. Payment Terms
2.1 Ordering Products.
You may order a product on the Site by following the directions on the Site. Sphero may change the pricing fora product (from time to time in its sole discretion) by updating the Site and without any notice to you. Please do not use the store if you are under 18 years of age.
2.2 Payment Terms.
If you order on the Site, you agree to pay the then-current applicable fee listed on the Site. Sphero will use a third party payment processor to bill your credit card submitted in ordering the product on the date the product is shipped to you. You hereby authorize Sphero’s third party payment processor to bill your credit card as described above. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. If any fee cannot be charged to your credit card for any reason, Sphero may provide you, via email, notice of such non-payment and a link for you to update your payment information.
Subject to the terms of this Agreement, Sphero grants you a non-transferable, non-exclusive license to use the Site and Services for your personal, noncommercial use.
3.2 Certain Restrictions.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
Sphero reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Sphero will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof, except as expressly set forth in Section 9.
3.4 Support or Maintenance.
You may obtain basic technical support and maintenance in connection with the Site or Services by following the directions on the Site.
Excluding your User Content (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site and Services are owned by Sphero or Sphero’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Sphero and its suppliers reserve all rights not granted in this Agreement.
4. User Content
4.1 User Content.
“User Content” means any and all information and content that a user submits to, or uses with, the Site or Services (e.g., information in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Sphero. Because you alone are responsible for your User Content (and not Sphero), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Sphero is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant to Sphero, and you represent and warrant that you have the right to grant, an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site andServices. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Acceptable Use Policy.
The following sets forth Sphero’s “Acceptable Use Policy”:
(a) You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, including the rights of other users to their User Content; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, defamatory, pornographic, obscene, patently offensive, or that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable in our sole judgment; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, obligations, or restrictions imposed by any third party.
(b) In addition, you agree not to use the Site or Services to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather, or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site or Services, other computer systems, or networks connected to or used together with the Site or Services, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Site or Services; or (vii) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests, and queries, or to strip, scrape, or minedata from the Site or Services (except that we grant the operators of public search engines revocable permission to use spiders or similar technology to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly-available, searchable indices of the materials, but not caches or archives of such materials).
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Sphero Account in accordance with Section 9, and/or reporting you to law enforcement authorities.
4.5 Secondary License for EDU User Content.
When you upload certain User Content to EDU.Sphero.com, (e.g. programs, activities, and comments), you are free to add a Creative Commons License of your choice to the “Content” free text field, and acknowledge that this is additional, but subject and subordinate to, the license you grant to the Company and its affiliates and partners in Section 4.2 of this Agreement. If you choose not to provide a specific license, you agree to operate under the Attribution Non-Commercial 4.0 International license, which allows other users to share and adapt your content for non-commercial purposes in addition to, but subject to, the license granted to Sphero and Sphero alone in Section 4.2 of this Agreement. You acknowledge that it is not the Company’s responsibility to enforce this secondary license and the Company cannot guarantee that your secondary license will in fact be observed by other Sites or Services users.
4.6 Intellectual Property Policy.
We will terminate the accounts of users who repeatedly infringe intellectual property. See our Intellectual Property Policy here.
You agree to indemnify and hold Sphero (and its subsidiaries, officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Services, (b) your User Content, (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations. Sphero reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Sphero. Sphero will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
6. Third Party Sites; Other Users
6.1 Third Party Sites.
The Site might contain links to third party websites and services for third parties (collectively, “Third Party Sites”). Such Third Party Sites are not under the control of Sphero and Sphero is not responsible for any Third Party Sites. Sphero provides these Third Party Sites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites.
6.2 Other Users.
Each Site or Service user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Site or Service users are solely between you and such user. You agree that Sphero will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present, and future dispute, claim, controversy,demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users or Third Party Sites. IF YOU ARE A CALIFORNIA RESIDENT, 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.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE AND OUR 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, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Limitation on Liability
IN NO EVENT SHALL WE (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50); OR (B) AMOUNTS YOU HAVE PAID SPHERO IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Term and Termination
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Sphero Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your Sphero Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Sphero Account involves deletion of your User Content associated therewith from our live databases. Sphero will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Sphero Account or deletion of your User Content. The following provisions of this Agreement will remain ineffect after termination: Sections 3.2, 3.3, 3.5, 4–11.
10. Copyright Policy
Sphero respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated copyright agent for Sphero is:
Attn: AnaLisa Valle
4772 Walnut St, Suite 206
Boulder, CO 80301
11.1 Changes to This Agreement.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Site. Any changes to this Agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.2 Dispute Resolution.
(a) Governing Law and Venue
This Agreement shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. Any action or proceeding relating to a claim or controversy at law or equity that arises out of or relates to this Agreement or the Site or Services (a “claim”) must be brought in a state court located in Boulder, Colorado or a federal court located in Denver, Colorado, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, unless such claim is submitted to arbitration as set forth below. Notwithstanding anything to the contrary, Sphero may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential or proprietary information.
(b) Contact Sphero First
If a dispute arises between you and Sphero, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with Sphero regarding our Site or Services by emailing email@example.com.
(c) Alternative Dispute Resolution
For any claim where the total amount of the award sought is less than $10,000 USD, the party requesting relief may choose to resolve the dispute through binding non-appearance-based arbitration in accordance with the following: (i) the arbitration will be provided through a nationally-recognized alternative dispute resolution provider mutually agreed upon by the parties; (ii) the arbitration will be conducted in one or more of the following manners at the option of the party initiating arbitration: telephone, online, or written submissions; (iii) the arbitration will not involve any personal appearances by the parties or witnesses unless otherwise agreed by the parties; and (iv) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(d) Improperly Filed Claims
All claims between you and Sphero must be resolved in accordance with this Section 11.2. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Sphero may recover attorneys’ fees and costs up to $1,000, provided that Sphero has notified you in writing of the improperly filed claim and you fail to promptly withdraw the claim. Similarly, should Sphero file a claim contrary to this Section, you may recover attorneys’ fees and costs up to $1,000, provided that you have notified Sphero in writing of the improperly filed claim and Sphero fails to promptly withdraw the claim. The remedies in this subsection will not limit any other remedies that either party may have in law or in equity.
11.3 Entire Agreement.
This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement 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. Your relationship to Sphero is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Sphero’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon Sphero’s assignees.
11.4 Copyright/Trademark Information.
Copyright © 2018, Sphero, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
Apple, the Apple logo, iPhone, iPad, and iPod touch are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. All other trademarks are the property of their respective owners.
11.5 Contact Information.
4772 Walnut St, Suite 206
Boulder, CO 80301