ShopTank Utility, Inc. and its subsidiaries and affiliates (collectively, “Tank Utility”) provides: (1) a Tank Utility user account website that may be accessed at tankutility.com or apps.tankutility.com or tankutility.firebaseapp.com (“Sites”), (2) services accessible through the Sites (“Web Apps”), (3) and software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), all for use in conjunction with Tank Utility hardware products (“Products”) and in other ways that Tank Utility provides. Some Tank Utility products and Services can be used together or in ways that integrate with products and services from third parties. The term “Services” means the Sites, Web Apps, and Mobile Apps.
These Terms of Service (“Terms”) govern your access to, and use of the Services. These Terms give you specific legal rights. In addition, you may also have other legal rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions and limitations of liability under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties, or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES), YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES.
AS DESCRIBED BELOW, SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
- Overview, Eligibility, Customer Service, Term and Termination
(a) Overview and Relation to Other Agreements. These Terms govern your use of the Services. Your purchase of any Product is governed by the limited warranty provided with that Product (“Limited Warranty”) and may further be governed by the Terms & Conditions of Sale. The software embedded in the Product (and any updates thereto) (“Product Software”) is licensed and governed by the End User Licensing Agreement. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms or rules, and the Website Privacy Policy(“Website Privacy Policy”) and the Privacy Statement (“Privacy Statement”), are incorporated by reference into these Terms, and you are agreeing to accept and abide by them by using the Services.
(b) Eligibility. You may use the Services only if you can form a binding contract with Tank Utility, and only if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules and regulations. Any use or access to the Services by anyone under the age of 18 is strictly prohibited and is a violation of these Terms. The Services are not available to any users previously prohibited from using the Services by Tank Utility.
(c) Customer Service. If you have any questions or concerns regarding the Products, the Services or these Terms, please contact Tank Utility.
(d) Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use the Services, or until terminated in accordance with the provisions of these Terms. At any time, Tank Utility may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Tank Utility, in good faith, believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under your Account (as described below) and will need to register for a separate Account with Tank Utility.
(e) Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
- Accounts
To use the Services, you must register for a user account (“Account”) and provide certain information about yourself, as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services does not violate any US or other applicable law or regulation (e.g. you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access without your permission. You agree to notify Tank Utility immediately of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. Tank Utility is not liable for any loss or damage arising from your failure to comply with the requirements above.
- Access to Services
(a) Access and Use. Subject to these Terms, Tank Utility grants you a non-transferable, non-exclusive right (without the right to sub-license) to access and use the Services by (i) using the Web Apps in connection with, and solely for the purpose of controlling and monitoring the Products installed on your property or otherwise accessing a service explicitly provided by Tank Utility for your use (the “Permitted Purpose”), and (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g. iPhone, iPad or Android smartphone) and solely for the Permitted Purpose, and (iii) if separately authorized, accessing a third-party service though an authorized account and the interface provided by Tank Utility.
(b) Automatic Software Updates. Tank Utility may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Product. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product, and you agree to install any Updates that Tank Utility provides promptly. Your continued use of the Services and the Product is your agreement – (i) to these Terms with respect to the Services, and (ii) to the End User License Agreement with respect to updated Product Software.
(c) Interface to Third-Party Products and Services. Over time, Tank Utility may provide the opportunity for you to interface the Products and Services to one or more third-party products and services, through, and using the Services, for example through the Works with Tank Utility platform (“Third-Party Products and Services”). You decide whether, and with which Third-Party Products and Services you want to interface. Your explicit consent and authorization is required for this interface and is revocable by you at any time. Once your consent is given for a particular Third-Party Product and Service, you agree that Tank Utility may exchange information and control data regarding you and your products, including your personal information, in order to enable the interface that you have authorized. Once this information is shared with the Third-Party Product or Service, its use will be governed by the third party’s privacy policy and not by Tank Utility’s privacy documentation. You acknowledge and agree that Tank Utility makes no representation or warranty about the safety of any Third-Party Products or Services. Accordingly, Tank Utility is not responsible for your use of any Third-Party Product or Service, or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from or relating to your use of any Third-Party Products or Services. You should contact the third party with any questions about their Third-Party Products and Services.
(d) Certain materials may be displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, video, images and illustrations (“Content”). The Content also includes information that you and other users provide us with in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Some content may be visible to others (for example, the Service allows you to upload, post or otherwise share video content). You may also post feedback, comments, questions or other information on the Sites. You are solely responsible for all Content that you upload, post, email, transmit or otherwise disseminate using, or in connection with the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you license to Tank Utility all patent, trademark, trade secret, copyright or other proprietary rights in, and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third-party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third-party right. Tank Utility reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
(e) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (iii) you agree not to access the Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, the Product, the Product Software or any other system, device or property; (vi) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Tank Utility; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with the Services. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
(f) Open Source. Certain items of independent, third-party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open-source licenses (“Open-Source Software”). The Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede the terms and conditions of any applicable end-user license for such Open-Source Software. In particular, nothing in these Terms restricts your right to copy, modify and distribute such Open- Source Software that is subject to the terms of the GPL.
(g) Privacy Statement. Please review the Privacy Statement. The Privacy Statement describes practices regarding the information that Tank Utility may collect from users of the Products and Services, including any Content or User Submissions.
(h) Security. Tank Utility cares about the integrity and security of your personal information. However, Tank Utility cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
(i) Modification. Tank Utility reserves the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice. You agree that Tank Utility will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof.
(j) Access Outside Certain Countries. Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to access the Sites from outside a country in which Tank Utility supports the Product and Services listed here (“Target Country”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use in a non-Target Country and that some, or all of the features of the Sites may not work or be appropriate for use in such a country. To the extent permissible by law, Tank Utility accepts no responsibility or liability for any damage or loss caused by your access or use of the Sites or Tank Utility Products in a non-Target Country. You will be bound by these Terms wherever you access or use the Sites, or use the Services.
- Agreed Usage and Limitations of Tank Utility Services
(a) Intended Use of Tank Utility Services. The Services are intended to be accessed and used for non-time-critical information and control of Tank Utility products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Tank Utility’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that Tank Utility is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.
(b) No Life Safety or Critical Uses of the Services. You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services, are not certified for emergency response. Tank Utility makes no warranty or representation that use of the Products or Services with any third-party product or service will affect or increase any level of safety. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM – TANK UTILITYWILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, the Tank Utility Customer Care and Support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life-threatening and emergency events should be directed to the appropriate response services.
(c) Reliability of Notifications. You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable and 100% available. We cannot, and do not guarantee that you will receive notifications in any given time, or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR TANK UTILITYPRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY, MONITORED EMERGENCY NOTIFICATION SYSTEM. The information provided by Tank Utility on what to do in an emergency is based on authoritative safety sources, but there is no way for Tank Utility to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
(d) Temporary Suspension. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Tank Utility does not offer any specific uptime guarantee for the Services.
(e) Systems Requirements. The Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Products; (ii) an Account; (iii) mobile clients, such as a supported phone or tablet (required from some functionality); (iv) always-on broadband Internet access in your home; and (v) other systems elements that may be specified by Tank Utility. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
(f) Energy Savings and other Benefits. Unless explicitly promising a “guarantee”, Tank Utility does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Products or Services or any feature of them. Actual energy savings and monetary benefits vary with factors beyond Tank Utility’s control or knowledge. From time to time, Tank Utility may use the Services to provide you with information that is unique to you and your energy usage, and suggests an opportunity to save money on energy bills if you adopt suggestions or features of the Product or Services. We do this to highlight an opportunity based on our analysis and information about you and your household. You acknowledge that these promotions are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Tank Utility if your savings differ.
(g) The Services provide you with information (“Product Information”) regarding the Products in your home and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information in the home.
(h) All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which such Content originated, and Tank Utility will not be liable for any errors or omissions in any Content. Tank Utility cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. In addition, we cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk, and you will be solely responsible for any damage or loss to any party resulting therefrom. 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.
(i) You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including, without limitation, any employee or representative of Tank Utility; (v) contains a virus, trojan horse, worm, time bomb or other harmful computer code, file or program; (vi) jeopardizes the security of your Tank Utility Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain the password, account or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers or otherwise attempts to obtain the source code or underlying ideas or information of, or relating to the Services.
- Limitations of Tank Utility Services Due to Third Parties.
(a) General. Tank Utility Services rely on, or inter-operate with third-party products and services. These third-party products and services are beyond Tank Utility’s control, but their operation may impact or be impacted by the use and reliability of the Tank Utility Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third-party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time and they may impact the way that the Tank Utility Services operate, and (iii) Tank Utility is not responsible for damages and losses due to the operation of these third-party products and services.
(b) Third-Party Service Providers Used By Tank Utility. You acknowledge that Tank Utility uses third-party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization and communication through Amazon Web Services, and mobile device notifications through mobile operating system vendors and mobile operators. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES.
(c) Equipment, ISP and Operator. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, home wiring, home Wi-Fi network and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”), and (iii) your mobile device operator (“Operator”). You acknowledge that you are responsible for all fees charged by your ISP and Operator in connection with your use of the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service and other policies of your ISP and Operator.
(d) Third-Party Products and Services that Work With Tank Utility Services. Tank Utility may provide the opportunity for you to interface with Third-Party Products and Services, for example through the Works with Tank Utility platform. Although the Works with Tank Utility platform is offered by Tank Utility, you acknowledge that Third-Party Products and Services that you connect to your account or interface with are not Tank Utility products and services, and you acknowledge and agree that Tank Utility does not control, and that these Terms do not apply to any Third-Party Products and Services. Use of any Third-Party Products and Services is governed by separate terms and conditions provided by the operator(s) of the applicable Third-Party Products and Services. You acknowledge and agree that Tank Utility makes no representation or warranty about the safety of any Third-Party Products or Services. Accordingly, Tank Utility is not responsible for your use of any Third-Party Product or Service, or any personal injury, death, property damage (including, without limitation, to your home), or other harm or losses arising from, or relating to your use of any Third-Party Products or Services. You should contact the Third Party with any questions about their Products and Services.
(e) App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third-party websites from which you download the Mobile Apps, e.g. the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Tank Utility and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(f) Third-Party Website Links and Referrals. The Sites may contain links to other websites operated by third parties (“Third-Party Sites”) and referrals to third-party vendors (“Referred Vendors”). Such Third-Party Sites and Referred Vendors are not under our control. Tank Utility provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
(g) Release Regarding Third Parties. Tank Utility is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-Party Products and Services, Third-Party Sites, Referred Vendors, Equipment, ISP and Operators. Tank Utility hereby disclaims, and you hereby discharge, waive and release Tank Utility and its licensors and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of, or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOUR 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”. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
- Ownership and Intellectual Property
(a) Tank Utility Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Product, Product Software and Services (i.e. the Sites, Web Apps and Mobile Apps) are owned by Tank Utility or its affiliates, or our licensors. Your possession, access to and use of the Product, Product Software and Services do not transfer to you or any third party any rights, title or interest in, or to such intellectual property rights. Tank Utility, and its affiliates and licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
You may only copy parts of the Services (including this Site) onto your own computer for your own personal use. You may not use the content of the Services in any other public or commercial way, nor may you copy or incorporate any of the content of the Services into any other work, including your own website, without the written consent of Tank Utility. You must have a license from us before you can post or redistribute any portion of the Services. Other than with respect to User Submissions, Tank Utility retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services, or any content therein.
(b) Feedback. You may choose to, or Tank Utility may invite you to submit comments, suggestions or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited and without restriction, and will not place Tank Utility under any fiduciary or other obligation. Tank Utility may use, copy, modify, publish or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Tank Utility does not waive any rights to use similar or related ideas previously known to Tank Utility, developed by its employees or obtained from other sources.
(c) User Submissions. You hereby grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable and transferable right to access, display or otherwise use your User Submissions (including all related intellectual property rights) solely in connection with providing you with the Services, and as directed by you. You also hereby do, and shall grant to each user of the Services a non-exclusive license to access and use your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt and translate any User Submissions submitted by you. For clarity, the foregoing license grant to Tank Utility does not affect your ownership of, or right to grant additional licenses to the material in your User Submissions, unless otherwise agreed in writing.
- Indemnity
You agree to defend, indemnify and hold Tank Utility and its licensors and suppliers harmless from any damages, liabilities, claims or demands (including costs and attorneys’ fees) made by any third party due to, or arising from (i) your use of the Products or Services, (ii) your violation of these Terms, (iii) any User Submissions or Feedback that you provide; or (iv) your violation of any law or the rights of any third party. Tank Utility reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Tank Utility, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Tank Utility’s prior written consent. Tank Utility will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Warranty Disclaimers
(a) THE WARRANTIES FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE EULA, RESPECTIVELY.
(b) THE SERVICES (I.E. THE SITES, WEB APPS, MOBILE APPS) ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND TANK UTILITY, AND OUR LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
(c) TANK UTILITY, AND OUR LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TANK UTILITY OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY.
(d) TANK UTILITY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO THIRD-PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE WORKS WITH TANK UTILITYPLATFORM), OR ANY HYPERLINKED WEBSITE OR SERVICE, AND TANK UTILITYWILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
(e) WHEN YOU INSTALL, SET UP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY TANK UTILITY, YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS, OR SET OR ADJUST DEFAULTS.
(f) TANK UTILITYMAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN, OR ACCESSED THROUGH THE SERVICES, AND TANK UTILITYWILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN, OR ACCESSED THROUGH THE SERVICES. TANK UTILITYMAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
- Limitation of Liability
Nothing in these Terms, and in particular within this “Limitation of Liability” clause, shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY DISCLAIMERS ABOVE, IN NO EVENT WILL (A) TANK UTILITYBE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM, OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF TANK UTILITYKNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) TANK UTILITY’S TOTAL CUMULATIVE LIABILITY ARISING FROM, OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO TANK UTILITYOR TANK UTILITY’S AUTHORISED RESELLER FOR THE SERVICES OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. TANK UTILITYDISCLAIMS ALL LIABILITY OF ANY KIND OF TANK UTILITY’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL TANK UTILITYBE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
- Fees and Payment
Certain aspects of the Services may be provided for a fee. You shall pay all applicable fees, as described on one or both of the Sites, in connection with such Services selected by you. Tank Utility reserves the right to change its price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on one or both of the Sites. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. Any fees paid hereunder for Services are non-refundable. If you have purchased your Product from us, please refer to your Product documentation for returns and warranty information, or contact Tank Utility.
- Disputes and Arbitration
(a) Contact Tank Utility First. If a dispute arises between you and Tank Utility, our goal is to learn about and address your concerns. You agree that you will notify Tank Utility about any dispute that you have with Tank Utility regarding these Terms, or our Products or Services, by contacting Tank Utility.
(b) Binding Arbitration. You and Tank Utility agree, subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), to submit any claim, dispute, action, cause of action, issue or request for relief arising out of, or relating to these Terms or your use of the Services to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section. Further, you agree that arbitration is final and binding, and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of, or relating to your use of the Service. Subject to clause 11(c) (Protection of Confidentiality and Intellectual Property Rights), any dispute or claim made by you against us or us against you arising out of, or relating to these Terms or your use of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration, except that you may take claims to small-claims court if they qualify for hearing by such a court.
(c) Arbitration Procedures. You must first present any claim or dispute to us by contacting Tank Utility to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days after presenting the claim or dispute to Tank Utility. Tank Utility may request arbitration against you at any time after it has notified you of a claim or dispute, in accordance with clause 11(f) (Notifications). The arbitration of any dispute or claim shall be conducted in accordance with the then-current and applicable rules of the American Arbitration Association, as modified by this agreement. The place of any arbitration will be San Francisco, California, USA, and will be conducted in the English language. Claims will be heard by a single arbitrator. The arbitrator may not award relief in excess of, or contrary to what this agreement provides, order consolidation or arbitration on a class-wide or representative basis, award punitive or consequential damages, or any other damages aside from the prevailing party’s actual damages, or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you, nor Tank Utility, nor the arbitrator may disclose the existence, content or results of any arbitration except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
(d) No Class Actions. There shall be no right or authority for any claims subject to this arbitration clause to be arbitrated on a class-action or consolidated basis, or on bases involving claims brought in a purported representative capacity on behalf of the general public (including, but not limited to as a private attorney general).
(e) Fees and Expenses. All administrative fees and expenses of arbitration will be divided equally between you and Tank Utility. Each party will bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at the arbitration hearing.
(f) YOU MUST CONTACT TANK UTILITY WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
This arbitration clause shall survive termination of these Terms.
- Digital Millennium Copyright Act
(a) If you are a copyright owner or an agent thereof and believe that any Content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further details): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number and, if available, an electronic mail; (v) A statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(b) Tank Utility’s designated Copyright Agent to receive notifications of claimed infringement is Nicholas Mashburn. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Tank Utility customer service through our website. You acknowledge that if you fail to comply with all the requirements of this Section 12(b), your DMCA notice may not be valid.
(c) Counter-Notice. If you believe that the Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) Your physical or electronic signature; (ii) Identification of the Content that has been removed or to which access has been disabled, and the location at which the Content appeared before it was removed or disabled; (iii) A statement that you have a good-faith belief that the Content was removed or disabled as a result of mistake or misidentification of the Content; and (iv) Your name, address, telephone number and email address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, USA, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
(d) If a counter-notice is received by the Copyright Agent, Tank Utility may send a copy of the counter-notice to the original complainant informing that person that they may replace the removed Content or cease disabling it in 10 working days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 working days or more after receipt of the counter-notice, at Tank Utility’s sole discretion.
- General
(a) Changes to these Terms. Tank Utility reserves the right to make changes to these Terms. We will post notice of modifications to these Terms on this page. You should ensure that you have read and agree with our most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms.
(b) Governing Law. The courts in some countries will not apply California law to some types of dispute. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that these Terms, and any claim, dispute, action, cause of action, issue or request for relief arising out of or relating to these Terms or your use of the Products and Services, shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in, or for Santa Clara County, California, USA, for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in a section above.
(c) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Tank Utility may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights, or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
(d) Entire Agreement/Severability. These Terms constitute the entire agreement between you and Tank Utility regarding the use of the Services. Any failure by Tank Utility to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
(e) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Tank Utility’s prior written consent. These Terms may be assigned by Tank Utility without restriction. These Terms are binding upon any permitted assignee.
(f) Notifications. Tank Utility may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) email to the primary email associated with your Account, hard copy or posting of such notice on www.tankutility.com. Tank Utility is not responsible for any automatic filtering that you or your network provider may apply to email notifications. Tank Utility recommends adding @Tank Utility.com email addresses to your email address book to help ensure that you receive email notifications from Tank Utility.
(g) Disclosures. Please see our website for Tank Utility’s address.
(h) Copyright/Trademark Information. Copyright © 2015, Tank Utility. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are the property of Tank Utility or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Tank Utility or such respective holders. Tank Utility reserves the right to alter product and services offerings, specifications and pricing at any time, without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.