Ellipse Terms of Use

Thank you for downloading the Ellipse mobile device application (the “App”), Velo Labs, Inc.’s (“Company" or “we” or “our” or “us”) software tool for managing one or more Ellipse bicycle locks (each a “Lock”).  These Terms of Use (this “Agreement”) govern your use of the App and your Locks.  Please read this Agreement carefully, as it (among other things) requires that you and the Company arbitrate certain claims instead of going to court and prohibits class action claims (you should review Section 13 below for details on these provisions).  

Please press “Accept” if you agree to be legally bound by all terms and conditions herein.  If you are viewing this on your mobile device, you can also view this Agreement via a web browser at https://www.lattis.io/pages/ellipse-terms-of-use.  Your acceptance of this Agreement creates a legally binding contract between you and the Company.  If you do not agree with any aspect of this Agreement, then do not press “Accept,” in which case you may not use the App.

Note for Children.  Use of the App by anyone under the age of 18 is prohibited.

1. How it Works; App Features.  When paired with your Lock in accordance with applicable documentation and provided that your Lock has sufficient battery power, the App allows you to, set a lock/unlock code for your Lock, remotely lock and unlock your Lock, find the location of your Lock and activate or use other features relating to your Lock as may be available from time to time (e.g., crash detection).

1.1 Note that it is critical that you keep your Lock and the mobile device on which you use of the App sufficiently charged in order to ensure that you are able to lock and unlock your bike as desired.  You are solely for responsible for ensuring that the Lock and your device are charged and that your device has sufficient Internet connectivity in order for the App to function.  
1.2 Theft detection features may not detect all attempted or successful attempts to compromise the security of a Lock. The Lock is intended to create a deterrent to theft, but you acknowledge that no bike lock is theft-proof and agree that the Company shall no liability to you in the event a bike or other item secured with you Lock is damaged or stolen by a third party.
1.3 The App may include features enabling you to allow third parties to unlock your Lock.  By way of example, the App may allow you to provide an unlock code to a friend for purposes of allowing him/her to borrow your bike.  You should only allow persons you know and trust to use your Lock in this manner.  Note that once generated, an unlock code may be used by any person who comes into possession of it, so you should instruct any recipient of any unlock code that they should not provide it to anyone else.
1.4 You agree to obtain the permission of any person you designate as an emergency contact for such designation, with such permission including consent to such person’s contact information being provided to the Company for use in connection with the Company’s privacy policy.  
2. Privacy Policy.  The Company’s Privacy Policy, at [link] (the “Privacy Policy”), describes the collection, use and disclosure of data and information (including location and usage data and information about your mobile phone contacts) by the Company in connection with the App and Locks.  The Privacy Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the collection, use and disclose practices set forth therein.
3. License to Use App.  Subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to install and use the App on a compatible mobile device that you own or control for your personal, non-commercial purposes, in each case in the manner enabled by the Company.  If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s App Store Terms of Service.   
4. Ownership; Proprietary Rights.  As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the App and the websites, software and technology used by the Company to provide App features and functionality and all usage and other data generated or collected in connection with the use of the App and Lock (the “Company Materials”).  Except for as may be expressly set forth herein,  you agree not to reverse engineer, decompile, disassemble, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials.
5. Mobile Services.  Use of the App requires usage of data services provided by your wireless service carrier.  You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the App.
6. Third Party Sites.  The App may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties.  You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them.
7. Prohibited Uses.  You will not use the App for any purpose that is unlawful or prohibited by this Agreement, or would cause a breach of any applicable agreements with third parties to which you are bound (such as, by way of example, your agreement with your wireless data services carrier).  You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the App.  In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we reasonably believe is false or misleading (including a profile that impersonates a third party).  By using the App, you represent and warrant that: (i) you are not located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist-supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.  
8. Termination.  You may terminate this Agreement at any time, for any reason or for no reason, by deleting your App account.  If you want your account deleted, you may do so through the App user interface.  Such requests will be honored within a reasonable time period after they have been received provided that you give us all reasonably necessary information and cooperation.  Certain data may continue to be stored in our backup systems until regularly scheduled deletions occur.  Note that deletion of the App from a mobile device does not cause your account to be deleted.  You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the App.  The Company may also in its sole discretion and at any time discontinue providing the App, or any part thereof, with or without notice.  You agree that any termination of your use of the App or any account you may have or portion thereof may be effected without prior notice, and you agree that the Company shall not be liable to you or any third-party for any such termination.  Sections 1.1-1.4, 4 through 13 and 15 will survive any termination of this Agreement.
9. Apple. You hereby acknowledge and agree that Apple: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the App; (iii) is not responsible for addressing claims by you or any third party relating to the App, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the App or use thereof infringes any third party intellectual property rights; and (v) and its subsidiaries are each a third party beneficiary of this Agreement with the right to enforce its terms against you directly.  
10. Disclaimers; No Warranties.  THE APP AND ANY WEBSITE, SOFTWARE, MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE APP ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY, AND ITS SERVICE PROVIDERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.  THE COMPANY AND ITS LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APP OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11. Indemnification; Hold Harmless.  You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the App, violation of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence.  The Company reserves the right, at its own 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.
12. Limitation of Liability and Damages.  UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY SERVICE PROVIDERS, LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM OR RELATE TO THE APP, INCLUDING YOUR USE OF THE APP OR INABILITY TO USE THE APP, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL THE COMPANY’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY SERVICE PROVIDERS’, LICENSORS’ OR PARTNERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE APP EXCEED FIFTY U.S. DOLLARS.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. Arbitration.
13.1 Agreement to Arbitrate.  This Section 13 is referred to herein as the “Arbitration Agreement.”  The parties hereby agree that any and all controversies, claims, or disputes between you and the Company arising out of, relating to, or resulting from this Agreement or your use of or inability to use the App, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies).  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential.
13.2 Class Action Waiver.  YOU AND THE COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
13.3 Procedures.  Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 12.  You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.  
13.4 Venue; Costs. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or the Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules.  Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
13.5 Severability.  If a court decides that any term or provision of this Arbitration Agreement other than Section 13.2 is invalid or unenforceable, you and the Company agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.  If a court decides that any of the provisions of Section 13.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
14. Changes.  The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time.  Changes will be effective: (i) thirty (30) days after we provide notice of the Changes, whether such notice is provided through the App user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first
15. Miscellaneous.  Under this Agreement, you consent to receive communications from the Company electronically.  This Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to any principles of conflicts of law.  You agree that any action at law or in equity arising out of or relating to this Agreement or the App that is not subject to arbitration under Section 13 shall be filed only in the state or federal courts in California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.  The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same.  A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.  If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.  This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction.  This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
16. Contact Information.  The App is provided by Velo Labs, Inc.  If you have any questions, complaints or claims with respect to the App, you may contact us as follows:

    661 Natoma Street, San Francisco, CA 94103, USA

    (415) 503-9744

    support@lattis.io