Effective date: June 26, 2024
Welcome to Viam. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications, including app.viam.com and related pages (the “Services”), including, without limitation, any request to receive information about, or to purchase any of the products made available through our website(s) (each, a “Product”). Your purchase of any Products will also be governed by any other terms made available by us to you during the sales process. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email: contact@viam.com
Discord: https://discord.com/invite/viam
Address: 1900 Broadway, 6th Floor, New York, NY 10023
These Terms of Use (the “Terms”) are a binding contract between you and VIAM INC. (“Viam,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy and any other accompanying terms and conditions of sale entered into between you and us for the sale of any Products. Your use of Viam open source products, including Contributions (as defined below) may be governed by a separate agreement and license associated with the third party repository for such code or provided by the contributor.
Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Will these Terms ever change?
We are constantly trying to improve our Products and Services, so these Terms may need to change along with our Products and Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at viam.com, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
Viam takes the privacy of its users very seriously. For the current Viam Privacy Policy, please click here.
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at contact@viam.com.
You may be required to sign up for an account, select a password, and provide us with certain information or data, such as your email address, first and last names, and, if applicable, your company affiliation. You promise to provide us with accurate, complete, and updated registration information about yourself. In signing up for an account, you may not provide a name that you do not have the right to use, or use another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
If you’re signing up to these terms as an individual for your personal purposes, and not on behalf of or in connection with any of your work or responsibilities for your employer or other organization, entity or institution (“Personal Account”), you represent and warrant that you are an individual of legal age to form a binding contract (or if not, that you have received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you plan on using the Services for your personal purposes, please sign up using your personal email address.
If you plan to use the Services for, on behalf of, or in connection with any of your work or responsibilities for a third party, please use your email address associated with such organization, entity or institution (“Organization Account”). If you’re agreeing to these Terms on behalf of an organization, entity or institution (collectively, an “Organization”), you represent and warrant that you are authorized to agree to these Terms on that Organization behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that Organization or entity). These Terms shall only apply to the extent that such Organization has not established separate terms and conditions governing your use of the Services.
It is important that you separate your personal projects from your work or responsibilities for any Organization by signing up a Personal Account for your personal projects using your personal email address, and using an Organization Account only for, on behalf of, or in connection with your work or responsibilities for such Organization. You’re solely responsible for your choice of Personal Account or Organization Account and hereby release and hold Viam harmless from any and all liability arising from such choice, including, without limitation, any transfer of or grant of rights to your User Submissions to any Organization as described herein.
You will only use the Services as specifically set forth in these terms and any Additional Terms and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. We can’t and won’t be responsible for your using the Services in a way that breaks the law. If you feel that these terms do not permit your desired uses, if your Organization, entity or institution requires different or additional rights, or if you have any questions, please contact us at contact@viam.com, and we would be pleased to discuss with you.
You will not share your account information or password with anyone, and you must protect the security of your account, password and any other access tools or credentials. You’re responsible for any activity associated with your account.
As part of the Services, you may receive communications through the Services, including messages that Viam sends you (for example, via email). When signing up for the Services, you may receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your contact information, you confirm that you want Viam to send you information regarding your account or transactions with us and/or information that we think may be of interest to you, whether now or in the future, and you agree to receive communications from Viam, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Viam. You agree to indemnify and hold Viam harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing.
You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The materials displayed or performed or available on or through the Services, including, but not limited to, code, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize 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 someone else’s (including Viam's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, license to use (i.e., to download and display locally) Content solely for purposes of using the Services.
Certain portions of the Services, Products and Content may be subject to additional or different licenses and terms and conditions, which will be made available in connection with the use and/or download of those Services, Products and Content. For example, access to the Viam RDK is governed by the terms available here.
Liability for Contributions
If you are accessing Contributions submitted by another user through the Services, you are responsible for making your own determinations that the Contributions are suitable for your purposes. Viam is not and will not be responsible for making sure that Contributions are up to a certain standard of quality, accurate, complete, non-infringing, or otherwise in compliance with applicable law. We do not control the actions of users with respect to Contributions, and unaffiliated contributors are not our employees.
Unaffiliated users that submit Contributions are not employees, partners, representatives, agents, joint venturers, independent contractors or franchisees of Viam. You hereby acknowledge that Viam does not supervise, direct, control or monitor the Contributions and expressly disclaims any responsibility and liability for the Contributions, including but not limited to any warranty or condition of good or workmanlike services, accuracy, completeness, non-infringement, warranty or condition of quality or fitness for a particular purpose, or compliance with any law, regulation, or code.
Viam cannot control and has no duty to take any action regarding how you may interpret, rely on or use any Contributions or what actions you may take as a result of using such Contributions, and you hereby release Viam from all liability for your use of Contributions. You also understand and agree that while, as between the parties, a contributor owns its Contributions, Viam makes no representations as to whether the Contributions are copyrightable or available for intellectual property protection under applicable law.
Except as otherwise provided for in a separate Contribution License or agreement relating to paid services between you (as a contributor) and a user of your Contribution, each user of a Contribution agrees to indemnify the contributor of the Contribution and Viam for claims, liabilities, damages, losses and expenses arising from or in any way related to use of the Contribution. We do not have any responsibility with respect to ensuring that you and/or any other users comply with any governing license, and we recommend that if you use any Contribution, that you review any such governing licenses carefully as such licenses may include additional indemnification obligations and disclaimers.
Anything you post, input, upload, share, store, or otherwise provide through the Services, including without limitation any data that is uploaded from devices to your account, is your “User Submission”. Contributions are deemed to be User Submissions. Some User Submissions, in addition to your Contributions, may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You have control over the level of access that you grant to Viam and third parties to your User Submissions. You always own all of your rights to your User Submissions, subject only to the rights and licenses described in these Terms.
When using either Personal Account or Organization Account, you represent and warrant that (i) you (and your licensors) have all right, title and interest (including, without limitation, sole ownership of) all of your User Submissions and the intellectual property rights with respect thereto, (ii) you have all the necessary rights, consents, and approvals to grant Viam the right and license to provide the Services to you or to use your User Submissions as otherwise permitted under these Terms. You, and not Viam, have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your User Submissions. You agree that you will not (and will not permit others to) violate any agreement with or rights of any third party (including your current and former Organizations) or, use or disclose at any time any third party’s confidential information or intellectual property in connection with your use of the Services.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
You have full ownership of and control over how and whether you permit your User Submissions to be viewable by others, as described in greater detail above regarding Contributions and below. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions. Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.
To be perfectly clear, Viam will not sell or make available your Private User Submissions or Limited Audience User Submissions to third parties, except as you expressly grant permissions as set forth herein.
For all User Submissions, you hereby grant Viam a license to translate, modify (for technical purposes such as making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only — your ownership in User Submissions is not affected.
If you store a User Submission (including a Contribution) in your own Personal Account or Organization Account, in a manner that is not viewable by any other user except you (each, a “Private User Submission”), you grant Viam the license above, as well as a license to display, perform, and distribute your Private User Submission for the sole purpose of making that Private User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission (including a Contribution) only in a manner that only certain specified users can view (for example, a project shared with one or more other users or an Organization Account that is accessible by other members of your Organization)(each, a “Limited Audience User Submission”), then you grant Viam the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the sole purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission (and, to the extent such User Submission is a Contribution, grant such other specified users a license to access any Contributions in accordance with a Contribution License), and to use and exercise all rights in it, as permitted by the functionality of the Services or as otherwise permitted in your Contribution License, as applicable. You acknowledge and agree that your User Submissions stored in your Organization Account shall be deemed as Limited Audience User Submission, and unless otherwise expressly requested by you in writing, any and all of the User Submission stored in your Organization Account may be accessed, viewed, shared, exported, or otherwise exploited by any other authorized users of your Organization. Your Organization, and not Viam, has the right to decide what rights and authorities you and/or other authorized users may have with respect to such User Submission stored in your Organization Account, and your agreement with such Organization may impose additional restrictions.
If you share a User Submission (including a Contribution) publicly on the Services and/or in a manner that enables more than just you or certain specified users to view the User Submission, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a "Public User Submission"), then, subject to the disclaimers above relating to Contributions, you grant Viam the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Viam users (to the extent such User Submission is a Contribution, in accordance with a Contribution License as set forth above) and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Viam’s business. Also, you grant all other users of the Services a license to access that Public User Submission (and, to the extent such User Submission is a Contribution, grant all other users of the Services a license to access any Contributions in accordance with a Contribution License), and to use and exercise all rights in it, as permitted by the functionality of the Services or a Contribution License, as applicable.
You agree that with respect to the licenses you grant for User Submissions that are not Contributions, such licenses are royalty-free, perpetual, sublicensable, irrevocable, and worldwide, provided that when you delete your Viam account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Viam's records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
You understand and agree that Viam, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
You agree that Viam is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services to you (“General Knowledge”). You further agrees that Viam shall have a perpetual, worldwide, non-exclusive, irrevocable right and license to use, store, copy, create derivatives, archive all User Submissions and Content (i) to create anonymized compilations and analyses of User Submissions and Content that is combined with data from numerous other users of the Service (“Aggregate Data”), (ii) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”) and (iii) to create, develop, enhance, improve, test, support and maintain existing and new Services, algorithms, machine learning and other generally available tools in connection with Viam using anonymous User Submissions and Content. Without limiting the foregoing, Aggregate Data may include, but is not limited to, information on an aggregate, anonymous basis, such as, the number of hardware equipment units in operation, fleet management trends, needs, and data, remote configuration trends, needs, and data, brands of hardware equipment in use, location or mapping based data, general statistics such as numbers of users, provided that such information shall not disclose the identity of any particular user. Viam shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other users; provided, however, that Viam shall not distribute Aggregate Data and Analyses in a manner that is identifiable as your User Submissions or Content.
In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
1. Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Viam's Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
2. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
3. Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.
Please contact Viam's Designated Agent at the following address:
Viam Inc.
Attn: Compliance Officer
1900 Broadway, 6th Floor, New York, NY 10023
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. 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. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites, services, or repositories that are not owned or controlled by Viam. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that Viam is not responsible for such risks.
Viam has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, Viam will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use 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 of these third parties. You agree that Viam shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that Viam is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Viam, its directors, officers, employees, agents, and successors 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. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “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.”
We’re always trying to improve our Products and Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Viam’s Services are offered at the pricing set forth on our Pricing page, and you may choose to purchase Services through the viam.com website or our applications. The prices displayed are quoted in U.S. currency and are valid only in the United States. Prices are subject to change at any time. Sales or other applicable tax will be determined by the billing address and will automatically be added to the order. Viam is required by law to apply tax to orders in certain jurisdictions. Any payment terms presented to you in the process of purchasing Services and Products are deemed part of these Terms.
You’re free to do that at any time by contacting us at contact@viam.com; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
Viam is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. If we decide to terminate your access to the Services, we will endeavor to provide you with at least thirty (30) days prior notice through your email or your account, unless we reasonably believe that your continued access would cause harm to the Viam platform, the Services or our business. Viam has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We have no obligation to continue to store your data after termination of this agreement. If you have deleted your robot, organization, or account by mistake, contact us immediately at contact@viam.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
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, including without limitation the arbitration agreement.
Warranty Disclaimer. Viam and its licensors (including contributors of a Contribution), suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (Viam and all such parties together, the “Viam Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content or Contributions contained in or accessed through the Services or any Products, and the Viam Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The Viam Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services including, without limitation, any Products. Products and Services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS-IS” and without any warranty of any kind from the Viam Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES, CONTRIBUTIONS AND CONTENT ARE PROVIDED BY OR THROUGH VIAM (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. 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 ANY OF THE VIAM PARTIES 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, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO VIAM IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the Viam Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), any Products and Contributions, and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Viam's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Viam and limits the manner in which you can seek relief from Viam. Both you and Viam acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Viam's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in New York County, NY. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Viam will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. Viam will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or Viam may assert claims, if they qualify, in small claims court in New York county, NY or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND VIAM WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Viam are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Viam over whether to vacate or enforce an arbitration award, YOU AND VIAM WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Viam is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 1900 Broadway, 6th Floor, New York, NY 10023 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Viam to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Viam agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York county, NY, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Viam.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Viam may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. 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 are 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 Viam agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Viam, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Viam, and you do not have any authority of any kind to bind Viam in any respect whatsoever.
