Terms of Service
Last updated February 8th, 2022
These Terms of Service (“Terms”) are a contract between you and Kivo Technology, Inc. dba Vilo Living and its affiliated companies ("Vilo", "we", "our" or "us"), and govern the terms and conditions on which you can access and use the following:
- The website located at www.viloliving.com (the “Website”),
- Vilo’s products including its mesh Wi-Fi routers (each, a “Vilo Device”),
- The Vilo mobile app(s) (each, a “Vilo App”) downloadable to your smartphone or other device that is used to configure and manage the Vilo mesh Wi-Fi network (“Vilo Network”),
- The Vilo Device store on the Website;
- Vilo’s remote management solution for Internet service providers; and
- The services provided by Vilo (the “Service(s)”), such as the mesh Wi-Fi services of a Vilo Network and the sale of Vilo Devices on the Website.
BY CREATING AN ACCOUNT ON THE WEBSITE OR THE VILO APP, OR USING OUR WEBSITE, OR PURCHASING OR ACCESSING THE VILO DEVICE(S) OR SERVICE, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 11, DO NOT USE OUR WEBSITE OR THE VILO DEVICES OR SERVICE.
Your ISP and Vilo. If your Vilo Network and Vilo Devices are monitored and managed by your Internet service provider (“ISP”), then:
- You hereby designate the ISP as your agent under these Terms. References to “you” and “your” in these Terms include your ISP when it acts in its capacity as your agent.
- You acknowledge that your ISP will have access to information about your Vilo Network and Vilo Devices (for example, your account information, your Vilo Network’s technical settings, usage and performance, and the smartphones and devices connected to your Wi-Fi network).
Changes to These Terms. We may make changes to the Terms from time to time. Our Terms will display
the date that it was last updated. If we make material changes to our Terms, we will provide you with
additional notice (such as adding a statement to the Website or Vilo App or sending you a notification). Your continued use of Vilo Devices and Service will be taken as acceptance of the updated Terms.
2. USE OF VILO DEVICES AND SERVICES
You must be at least 18 years of age to purchase the Vilo Devices, open an Account (as defined in Sec. 2.B. below), use the Vilo App, or manage a Vilo Network. If you are under the age of 18, you may only access the Vilo Network and use the Service under the supervision of a parent or legal guardian who has reviewed and agreed to these Terms. Any parent or legal guardian of a user under the age of 18 who has reviewed these Terms as required by the previous sentence, hereby agrees to be fully responsible for the acts or omissions of such user in relation to the use of the Vilo Devices or Service. For clarity, no-one under the age of 18 is eligible to purchase any Vilo Device or open an Account or use the Vilo App or manage a Vilo Network.
If you use the Vilo Devices or Service on behalf of another person or entity, (1) all references to “you” throughout these Terms will include that person or entity, (2) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (3) in the event you, the person, or the entity violate these Terms, both you and the other person or entity agree to be jointly and severally responsible and liable for any such violation.
You agree that you will not access the Website, Vilo App, Vilo Devices, Vilo Network or Service from any territory where such access is illegal or unlawful.
B. Your Account
To use the Service and set up a Vilo Network, you must register or sign up for a user account with Vilo (“Account”) and provide certain information about yourself, as prompted by the applicable sign-up screen or registration form. You represent and warrant that: (1) all required registration and Account information that you submit is truthful, current and accurate; (2) you will maintain the accuracy of such information; (3) you are not located in a 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; (4) you are not listed on any U.S. Government list of prohibited or restricted parties; and (5) your use of the Vilo Devices or Service will not violate any United States or other applicable law or regulation.
You must maintain the security of your Account and promptly notify us if you discover or suspect that someone has accessed your Account without your permission. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
You may not purchase any Vilo Device, sign up for an Account, manage a Vilo Network, or use the Service if you have been previously prohibited by Vilo from using the Vilo Devices or Service.
C. Suspension or Termination of Account
Vilo may suspend or terminate your Account and/or access to Vilo Devices and Service at any time upon becoming aware of any violation or threatened violation of the Terms, any security or other threat to our systems, technology, business or to other people, or other matters warranting such suspension or termination. We are not responsible for any loss or harm related to your inability to access or use our Service.
D. Access and Use
Vilo operates the Service from its headquarters in the United States, and offers the Vilo Devices and Service for use only in the United States. Vilo does not provide support for the Vilo Devices or Service outside of the United States. Use of the Vilo Devices and Service outside the United States automatically voids the warranty for the Vilo Devices. If you use the Service outside the United States of America, you are responsible for complying with applicable local laws.
You may access and use the Service as permitted by, and subject to, these Terms, and all other agreements between you and Vilo. You are solely responsible for your conduct while using the Vilo Devices or Service, and you will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort while using the Vilo Devices or Service.
Without limiting the generality of the foregoing, you agree that you will not:
- use or attempt to use another user’s Account without authorization from that user and Vilo;
- permit any third party to access the Service except as permitted herein;
- unless authorized by Vilo, sell or resell Vilo Devices or sell or resell access to the Service;
- copy, reproduce, distribute, publicly perform or publicly display any or all portions of the Service (including the Vilo Apps, software and associated technology), except as expressly permitted by us;
- modify the Vilo Devices or Service, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon the Vilo Devices or Service;
- use the Vilo Devices or Service other than for their intended purpose or in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Vilo Devices or Service or that could damage, disable, overburden or impair the functioning of the Vilo Devices or Service in any manner;
- reverse engineer any aspect of the Vilo Devices or Service or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Vilo Devices or Service;
- copy, frame or mirror any part or content of the Service;
- use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Vilo Devices or Service;
- develop or use any applications, except those applications provided by Vilo, that interact with the Vilo Devices or Service without our prior written consent;
- use the Vilo Devices or Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms or conduct that is harassing, threatening, intimidating, predatory or stalking;
- copy any feature, function or graphic of the Vilo Devices or Service; or
- access the Vilo Devices or Service in order to build a competitive product or service, or copy any feature, function or graphic of the Vilo Devices or Service.
E. Software Updates
Vilo may, in its sole discretion from time to time, provide software updates, patches, fixes and other modifications to the Vilo Devices, Vilo Apps, Vilo Network or Service (collectively “Updates”), but has no obligation to do so. Any Update will be subject to these Terms. You agree to install Updates to use the Vilo App, Vilo Devices, Vilo Network or Service, and you will promptly install any Updates that Vilo makes available to you. If you do not want such Updates, your remedy is to terminate your Account with us and stop using the Vilo Devices, Vilo App, Vilo Network and Service.
F. System Requirements
The Vilo Devices and Service will not be fully accessible without:
- working broadband Internet to which the Vilo Devices can reliably connect;
- an Account;
- an enabled and supported device (such as a smartphone or table) with the Vilo App installed; and
- other system elements that may be specified by Vilo, as and when applicable.
It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. The Vilo Devices and Service may not work as described when such requirements have not been met. In the event of any service interruptions to your home’s Internet connection, or to your mobile and other network connections with respect to the Vilo App, the Vilo Devices or Service may be unreliable or unavailable for the duration of such interruption. Because you are solely responsible for ensuring proper connections for transmission of data with respect to the Vilo Devices and Service, we are not responsible for any such interruptions and any resulting failures of the Vilo Devices or Service.
G. Export Control
The Vilo Devices and Service, and the technology and the content contained therein, may not be exported or re-exported to (1) any U.S. sanctioned or embargoed countries or regions; or (2) any person or entity on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person's List or Entity List, or other U.S. sanctions or export control lists.
H. ADDITIONAL TERMS APPLICABLE TO THE VILO APPS
Vilo iOS App. The following additional terms and conditions apply with respect to the App that Vilo provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and Vilo only, and not with Apple, Inc. (“Apple”).
- Your use of Vilo’s iOS App must comply with Apple’s then-current App Store Terms of Service.
- Vilo, and not Apple, is solely responsible for the iOS App and the Service and content available thereon.
- You acknowledge that Apple has no obligation to provide maintenance and support services with respect to the iOS App.
- To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. You agree that Vilo, and not Apple, is responsible for addressing any claims by you or any third-party relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to: (1) product liability claims; (2) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App. You agree that Vilo, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App.
- You represent and warrant that (1) you are not located in a 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of the iOS App. Upon your acceptance of these Terms, Apple, as a third party beneficiary hereof, will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App.
Vilo Android App. The following additional terms and conditions apply with respect to any Mobile Application that Vilo provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and Vilo only, and not with Google, Inc. (“Google”).
- Your use of the Android App must comply with Google’s then-current Google Play Store Terms of Service. Google is only a provider of the Google Play Store where you obtained the Android App.
- Vilo, and not Google, are solely responsible for the Android App and the Service and content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Android App.
You are responsible for the information, content for material that you submit, upload, or otherwise provide to Vilo on or through the Website, Vilo App or Service (each a “Submission”). You may not submit, upload, or otherwise make available on or through the Website, Vilo App or Service any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Submission that you make. You have full responsibility for each Submission you make, including its legality, reliability and appropriateness.
Your Submission may not:
- be unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
- constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- contain or depict any statement, remark or claim that does not reflect your actual view or experience;
- impersonate, or misrepresent your affiliation with, any person or entity;
- contain any unsolicited promotion, political campaigning, advertising or solicitation;
- contain any private or personal information of a third party without such third party’s consent;
- contain any virus, corrupted data or other harmful, disruptive or destructive file or content; or
- in our sole judgment, be objectionable, restrict or inhibit any other person from using or enjoying our Service, or expose us or others to any harm or liability of any type.
4. THIRD-PARTY PRODUCTS, SERVICES AND CONTENT
Vilo Devices and Service rely on or inter-operate with third-party products and services, including, without limitation, Internet and mobile services, communications technologies and devices, and app stores (collectively, “Third-Party Materials”). These Third-Party Materials are beyond Vilo’s control, but their operation may impact, or be impacted by, the use and reliability of the Vilo Service and Vilo Devices. You acknowledge that:
- the use and availability of the Vilo Devices and Service are dependent on Third-Party Materials;
- these Third-Party Materials may not operate in a reliable manner 100% of the time and they may impact on the way that the Vilo Service operate; and
- except as otherwise required by law, Vilo has no liability for Third-Party Materials.
The Website may contain links to websites, products, services and materials operated by third parties (“Third-Party Content”). In addition, a Vilo Network allows you to access Third-Party Content on the Internet. Vilo does not control or endorse, and makes no representations or warranties regarding, Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
We do not warrant or endorse, and will have no responsibility with respect to: (1) Third-Party Materials; (2) Third-Party Content; (3) products or services that you have been offered by, or obtain from, a third party; or (4) any data or other information you may provide to a third party. You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services and other products and services necessary to access and use the Vilo Devices, Service and Website.
5. OWNERSHIP AND INTELLECTUAL PROPERTY
The Vilo Devices, Vilo Apps, Service, and Website, together with their associated intellectual property and proprietary rights, are owned by Vilo or our licensors and are protected under both United States and foreign laws. We reserve all right, title and interest in and to the Vilo Devices, Vilo Apps, Service, and Website, and their associated intellectual property and proprietary rights. No rights are granted to you hereunder other than as expressly set forth herein.
B. Vilo Trademarks
The “Vilo” and “Vilo Living” names, our logos, our product and service names, our slogans, and the look and feel of the Vilo Devices, Vilo Apps and Service are trademarks of Vilo and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, product names, company names or logos referenced by Vilo are the property of their respective owners. Reference by Vilo to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may choose to or Vilo may invite you to submit comments, suggestions or ideas about the Vilo Devices or Service (“Feedback”), including how to improve the Vilo Devices or Service. (Your Feedback is also a Submission, as discussed in Section 3 above.) By submitting or providing Feedback, you hereby agree that (1) your Feedback is provided voluntarily, gratuitously and without restriction; and (2) Vilo’s receipt or use of such Feedback will not place Vilo under any obligations to you or any other party. Vilo may use, copy, modify, publish or redistribute the Feedback and its contents for any legitimate purpose without any compensation to you. Vilo does not waive any rights to use similar or related ideas previously known to Vilo, developed by its employees or obtained from other sources.
6. VILO TERMS OF SALE
The following Terms of Sale apply to the purchase of Vilo Devices through our Website. By purchasing a Vilo Device, you accept and agree to be bound by these Terms of Sale. If you do not agree to these Terms of Sale, do not purchase Vilo Devices from the Website.
A. Order Eligibility
To complete your purchase, you must have a valid billing and shipping address in the United States. We make no promise that Vilo Devices or Service available on the Website are appropriate or available for use in locations outside the United States.
B. Product Availability, Display, and Specifications
Details of the Vilo Devices and Service available for purchase are set out on the Website. The features, content, specifications, and prices of the Vilo Devices and Service are subject to change at any time without notice. We attempt to ensure that information on the Website is complete, accurate, and current. Despite our efforts, the information on the Website may occasionally be inaccurate, incomplete, or out of date. We make no representation as to the completeness, availability, accuracy or currency of any information on the Website. For example, the Vilo Devices and Service featured on the Website may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Website.
We make reasonable efforts to publish information and display Vilo Device images accurately, but we cannot guarantee that the image you see on your monitor or mobile device will exactly match your Vilo Device. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. Packaging may vary from that shown.
C. Purchase Restrictions and Quantity Limits
As a consumer, you may only purchase Vilo Devices for personal use by either yourself or your intended recipient of the Vilo Devices. Unless authorized by Vilo, you may not resell the Vilo Devices or Service. We reserve the right to place limits on the quantities that may be purchased per order, per account, per credit card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.
D. Order Process; Errors
You will have the opportunity to review and confirm your order, including delivery address, payment method, and other details of your order. We will display or send a notice when we accept your order and our acceptance will be complete at the time we display or send the notice. We will arrange for shipment of the Vilo Devices to you. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping and delivery of your order. Title and risk of loss in any goods you purchase pass to you when the shipping carrier receives the goods from Vilo. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
We reserve the right to refuse or cancel any order prior to delivery. For example, if there are errors on the Website or made in connection with your order, inaccuracies in Vilo Device or pricing information or Vilo Device availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We also may require verification of information prior to the acceptance and/or shipment of any order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Vilo Device or Service may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.
Prices shown on the Website exclude all taxes or charges for shipping and handling. Taxes and shipping and handling costs will be added to the amount of your purchase and itemized on the check-out page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. Each item in your shopping cart is shown at the current price. All prices on the Website are subject to change at any time without notice. We do not collect taxes on merchandise shipped to a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase from the Website.
The Website gives you different payment options. We reserve the right to change our payment options at any time and for any reason. Payment must be received by us before our acceptance of an order. When you provide credit card information or other information necessary to facilitate payment to us or our vendors, you represent to us that (1) you are the authorized user of the credit card that is used to pay for the Vilo Devices and Service, (2) the credit card information you supply to us is true, correct and complete, (3) charges incurred by you will be honored by your credit card company, and (4) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your order.
In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. Credits or refunds will be made to the same method of payment and account used to place the order.
OUR RETURN POLICY IS IN ADDITION TO ANY STATUTORY RIGHTS YOU MAY HAVE UNDER LAW. WE WILL ACCEPT ANY ITEMS RETURNED IN ACCORDANCE WITH OUR RETURN POLICY DESCRIBED ON OUR RETURN POLICY AND LIMITED WARRANTY TERMS. WE MAY DENY ANY RETURN IF IT FAILS TO MEET OUR RETURN CRITERIA DESCRIBED IN OUR RETURN POLICY. FOR ADDITIONAL INFORMATION ON OUR RETURN PROCESS AND POLICY, PLEASE VISIT OUR RETURN POLICY AND LIMITED WARRANTY TERMS.
7. LIMITED WARRANTY AND DISCLAIMERS
A. Limited Warranty
Vilo offers a limited warranty for certain Vilo Devices in accordance with the terms of its published limited warranty and returns policy (the “Limited Warranty”) posted on our Return Policy and Limited Warranty Terms. All warranty claims are subject to the terms of this Limited Warranty.
B. Intended Use of Vilo Devices and Service
Our Vilo Devices and Service are intended to be accessed and used for non-critical, non-life safety, home-based, personal, non-commercial uses. While we aim for the Service to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Vilo Devices and Service are subject to sporadic interruptions and failures for a variety of reasons, including those beyond Vilo’s control (for example, Internet intermittency, cellular downtime, and service provider technology issues). Vilo is not responsible for any damages incurred by the failure or delay of the Service or Vilo Devices.
C. Service Interruptions and Failures; No Refund, Credits or Rebate
The Service may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You will not be entitled to any refund, credits or rebate, or any other compensation, for such suspensions. Vilo does not offer any specific uptime guarantee for the Service.
D. Customer Support
If you have any questions or concerns regarding the Vilo Devices, the Service or the Terms, please contact Vilo at [email protected] Customer Support is subject to availability of applicable Vilo personnel and is limited to responding to inquiries sent through standard email and other established Vilo communication channels.
Vilo does not provide any commitments or guarantees as to response times or as to whether problems or concerns can be resolved or addressed. Vilo does not purport to offer or provide customer support on an emergency or urgent basis.
E. Disclaimer of Warranties
YOUR USE OF THE VILO DEVICES AND SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, THE VILO DEVICES AND SERVICES AND ANY CONTENT THEREIN, INCLUDING USER CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, VILO DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE VILO ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW OR LIMIT THE EXCLUSION OF CERTAIN WARRANTIES, SO THE DISCLAIMERS AND LIMITATIONS ABOVE MAY NOT APPLY TO YOU TO THE EXTENT APPLICABLE LAW SO REQUIRES.
To the fullest extent permitted by applicable law, you release Vilo, its subsidiaries and affiliates, and each of our respective officers, directors, employees, agents, licensors, and partners, from responsibility, losses, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence, personal injury or loss of life), arising out of or related to (1) your use of the Vilo Devices and Service, (2) disputes between users and (3) the acts or omissions of third parties, including as they may relate to Third-Party Materials. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “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.”
8. INDEMNITY FOR THIRD-PARTY ACTIONS
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Vilo, our subsidiaries and affiliates and each of our respective officers, directors, employees, agents, licensors, partners, and suppliers (individually and collectively, the “Vilo Parties”) from and against any and all losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to: (1) your access to or use of the Vilo Devices or Service; (2) your Submissions or Feedback; (3) your violation of these Terms; (4) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (5) your conduct in connection with the Vilo Devices or Service. Nothing contained herein will be construed to require any indemnification which would render or make this clause, in whole or in part, void and/or unenforceable under applicable law. Your indemnification obligation will not apply to Claims arising from the willful, wanton, grossly negligent, intentional or reckless misconduct of the Vilo Parties. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Vilo or the other Vilo Parties.
You will promptly notify Vilo Parties when you become aware of any third-party Claim, cooperate with Vilo Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). Vilo reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Vilo Parties, and you will cooperate with our defense of such third-party Claims. You will not to settle any third-party Claim without Vilo’s prior written consent. Vilo will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
9. MODIFICATION OR TERMINATION OF SERVICES
Vilo reserves the right, in its sole discretion, at any time to modify, augment, limit, suspend, discontinue or terminate any aspect of the Vilo Devices and Service without advance notice. All modifications and additions to the Vilo Devices and Service will be governed by the Terms, unless otherwise expressly stated by Vilo in writing. Vilo will not be liable to you or to any third-party for any modification, suspension or discontinuance of the Vilo Devices and Service or any aspect thereof.
10. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT VILO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF VILO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SERVICE OR ANY VILO DEVICE OR OTHER VILO PRODUCT; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED (INCLUDING WITHOUT LIMITATION, ANY VILO DEVICE OR OTHER VILO PRODUCT OR SERVICE) OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE, VILO APP OR WEBSITE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (5) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL VILO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID VILO’S IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
11. DISPUTE RESOLUTION BY BINDING ARBITRATION; WAIVER OF CLASS ACTION AND JURY TRIAL
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH VILO AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL. ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR OUR SERVICES IS PERSONAL TO YOU AND VILO AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ACTION, AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY
OTHER TYPE OF REPRESENTATIVE PROCEEDING.
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and us, whether arising out of or relating to these Terms (including any alleged breach thereof), the Service, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that (1) you may assert individual claims in small claims court, if your claims qualify, and (2) Vilo may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, copyrights, patents, trade secrets, and domain names). Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and we are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND VILO AGREE THAT EACH OF US 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 YOU AND VILO 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), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution
Vilo is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Vilo should be sent to 3600 136th Place SE, Suite 300, Bellevue, WA 98006 (“Notice Address”). The Notice must (1) describe the nature and basis of the claim or dispute and (2) set forth the specific relief sought. If Vilo and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Vilo may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Vilo or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Vilo is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer as may be updated from time to time. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable 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 these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are
enforceable in court and may be overturned by a court only for very limited reasons.
Unless Vilo and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Vilo agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties 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 or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, Vilo agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Vilo written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
12. GOVERNING LAW AND VENUE
Any dispute arising from these Terms and your use of the Vilo Devices, Vilo Apps, Service or Website will be governed by and construed and enforced in accordance with the laws of the State of Washington, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any dispute between the parties is not subject to arbitration or cannot be heard in small claims court, then the state and federal courts located in King County, Washington, will have exclusive jurisdiction. You waive any objection to venue in any such courts.
A. Severability; Waiver
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. Enforcement of these Terms is solely at Vilo’s discretion, and the failure or delay of Vilo to exercise or enforce any right, remedy or provision of the Terms will not constitute a waiver of such right, remedy or provision. All waivers of any terms or conditions in these Terms must be in writing signed by the waiving party.
Vilo may provide notices to you with respect to these Terms, the Vilo Devices or Service, or as required by law, by posting such notices on the Website and/or through the Vilo App and/or by sending them to you via email to the primary email address associated with your Account (if any) and/or to the mobile number or messaging address (if any) you provided to us in connection with your Account. Any such notices will be deemed properly and timely given to you hereunder. Vilo is not responsible for any automatic filtering that you or your network provider may apply to email or mobile notifications. Vilo recommends adding @viloliving.com email addresses to your email address book to help ensure that you receive email notifications from Vilo. You consent to the use of: (1) electronic means to provide you with any notices given pursuant to these Terms; and (2) electronic records to store information related to these Terms or your use of the Vilo Devices or Service.
If you have any comments or questions about these Terms, please contact us at [email protected] or the address below referencing “Terms of Service” in the subject line. Our team will address your concerns. If your question itself involves a significant issue, we may ask you for more background information.
Kivo Technology, Inc. (dba Vilo Living)
3600 136th Place SE, Suite 300
Bellevue, WA 98006
California residents are entitled to the following consumer rights notice: California residents may reach
the Complaint Assistance Unit of the Division of Consumer Service of the California Department of
Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916)
445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.