Last Revised on July 2, 2019
Welcome to the Terms of Service (these “Terms”) for the Retina Go! service offered at https://staging-retinaai.kinsta.com/retina-go (together with any related services, applications, or materials provided therewith, the “Retina Go! Service”) and operated by Retina AI Inc. (“Company”, “we” or “us”).
These Terms govern your access to and use of the Retina Go! Service. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Retina Go! Service, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Retina Go! Service. For purposes of these Terms, “you” and “your” means you as the client of the Retina Go! Service. If you use the Retina Go! Service on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
Section 9 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 9.
DESCRIPTION OF THE Retina Go! Service AND ELIGIBILITY
- Provision of Retina Go! Service. The Retina Go! Service is a free tool for quickly predicting the mean customer lifetime value (“CLV”) of your customers. When you sign up to use the Retina Go! Service, you will be asked to fill out a form with your business information and contact information. We will then use that information to determine if you are eligible to use the Retina Go! Service, which determination we will make in our sole and exclusive discretion. You may only use the Retina Go! Service if you are a business entity based in the United States, and you may not include in your Uploaded Materials (as defined below) any information about individuals residing outside of the United States.
- Provision of Order Data and Analysis File. If we determine that you are eligible to use the Retina Go! Service, the Retina Go! Service will allow you to upload a file with your historic customer order data (“Order Data”). For clarity, the only customer order data that we will have access to from your use of the Retina Go! Service is the Order Data that you upload when using the Retina Go! Service. Once your Order Data file is received and deemed eligible for an analysis, the Retina Go! Service will then attempt to run an analysis on your Order Data to predict the CLV for a portion of your customers. Once such CLV analysis is complete, you will then receive an email with the results of our analysis and a link to a file with customer-level data generated by our Retina Go! Service based on the information in your Order Data (such file, the “Analysis File”).
- Use of your Uploaded Materials. As a condition of your use of the Retina Go! Service, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicenseable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, modify and adapt your Order Data for the purposes of (i) providing the Retina Go! Service to you, (ii) creating your Analysis File, and (iii) for our internal use only to analyze and improve the functionalities of the Retina Go! Service and our other products and services.
- Representations and Warranties. You represent, warrant and covenant that you will only upload materials and information to the Retina Go! Service, including as part of an Order Data (collectively, any such information “Uploaded Materials”), to the extent that: (a) your collection, use and uploading to the Retina Go! Service of your Uploaded Materials, and the use by you and us of your Uploaded Materials as envisaged by these Terms, comply with applicable laws and regulations; (b) you have obtained all consents and other authorizations required by applicable laws and regulations to collect, use and upload your Uploaded Materials to the Retina Go! Service and for you and us to use your Uploaded Materials as envisaged by these Terms; (c) you are not subject to any laws or regulations, regulations which prevent or place any restrictions on the collection, use and/or uploading to the Retina Go! Service of any of Your Uploaded Materials, and/or on the use by you and us of your Uploaded Materials as envisaged by these Terms, and (d) your Uploaded Materials will not contain material subject to copyright or other proprietary rights or otherwise be submitted in a manner that might violate any third party’s intellectual property or privacy rights, unless you have the necessary permission or are otherwise legally entitled to grant us the license described above. We reserve the right, with or without notice, at any time and in our sole discretion to block access to the Retina Go! Service for any user who infringes or is alleged to infringe any copyrights or other intellectual property rights or privacy rights in connection with their use of the Retina Go! Service.
Rights We Grant You
- License Grant from Us. Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software provided to you as part of the Retina Go! Service and to use the Analysis File we provide to you solely in connection with your use of the Retina Go! Service for your own internal business purposes.
- Restrictions On Your Use of the Retina Go! Service. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
- download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Retina Go! Service (including any Analysis Files), other than in each case for your own internal business purposes, and for clarity you may not share or transfer any Analysis Files to any third parties other than to Facebook’s advertising platform for your own internal marketing purposes;
- duplicate, decompile, reverse engineer, disassemble or decode the Retina Go! Service (including any underlying idea or algorithm), or attempt to do any of the same;
- use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Retina Go! Service or any Analysis File;
- use any unauthorized third-party software designed to modify the Retina Go! Service;
- access or use the Retina Go! Service in any manner that could disable, overburden, damage, disrupt or impair the Retina Go! Service or interfere with any other party’s access to or use of the Retina Go! Service or use any device, software or routine that causes the same;
- attempt to gain unauthorized access to, interfere with, damage or disrupt the Retina Go! Service, or the computer systems or networks connected to the Retina Go! Service;
- circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Retina Go! Service;
- use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Retina Go! Service to monitor, extract, copy or collect information or data from or through the Retina Go! Service, or engage in any automatic or manual process to do the same, including by automatically initiating or using the Retina Go! Service using a bot or other automated means;
- framing, mirroring or otherwise offering the Retina Go! Service to other third parties;
- introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
- use the Retina Go! Service for illegal, harassing, unethical, or disruptive purposes;
- violate any applicable law or regulation in connection with your access to or use of the Retina Go! Service; or
- access or use the Retina Go! Service in any way not expressly permitted by these Terms.
- Ownership of the Retina Go! Service. The Retina Go! Service, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Retina Go! Service (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Retina Go! Service and its content (other than Your Uploaded Materials), including, without limitation, the exclusive right to create derivative works. As between us and you, you own and will continue to own all right, title in and to your Uploaded Materials except for the limited license granted to us under these Terms.
- Ownership of Trademarks. The Company’s name, the “Retina Go!” and “Retina AI” names, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Retina Go! Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
- Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Retina Go! Service (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Retina Go! Service or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
Third Party Retina Go! Service and Materials
- Use of Third Party Materials in the Retina Go! Service. Certain Retina Go! Service may display, integrate with, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Retina Go! Service, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Retina Go! Service, Third Party Materials or third-party websites, or for any other materials, products, or Retina Go! Service of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
Disclaimers, Limitations of Liability and Indemnification
- Disclaimers. Your access to and use of the Retina Go! Service, including any Analysis Files provided in connection therein are at your own risk. You understand and agree that the Retina Go! Service, including any Analysis Files, are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “the Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security, quality, performance or reliability of the Retina Go! Service, including any Analysis Files or other outputs we provide you when using the Retina Go! Service; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Retina Go! Service, including any Analysis Files; (c) the operation or compatibility with any other application or any particular system or device; (d) the performance of your paid marketing campaigns using any Analysis Files or other outputs we provide you when using the Retina Go! Service; (e) whether the Retina Go! Service will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (f) the deletion of, or the failure to store or transmit, your Uploaded Materials and other communications maintained by the Retina Go! Service. No advice or information, whether oral or written, obtained from the Company Entities or through the Retina Go! Service, including any Analysis Files, will create any warranty or representation not expressly made herein.
- Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE RETINA GO! SERVICE INCLUDING ANY ANALYSIS FILES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE RETINA GO! SERVICES, INCLUDING ANY ANALYSIS FILES, OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE RETINA GO! SERVICES, INCLUDING ANY ANALYSIS FILES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE RETINA GO! SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnification. By entering into these Terms and accessing or using the Retina Go! Service, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your access to or use of the Retina Go! Service, including any Analysis Files; (d) Your Uploaded Materials, or (e) your negligence or wilful misconduct.
ARBITRATION AND CLASS ACTION WAIVER
- Informal Process First. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
- Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s Retina Go! Service and/or products, including the Retina Go! Service, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.
- Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
- Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to [email protected] or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your registering to use the Retina Go! Service or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
- Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Retina Go! Services webpage. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Retina Go! Service after the modifications have become effective will be deemed your acceptance of the modified Terms.
- Termination of Your License and the Retina Go! Service. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete the Retina Go! Service (or any part of the foregoing) with or without notice, for any or no reason. In the event of termination or suspension of the Retina Go! Service, the Company may, but is not obligated to, delete any of your Uploaded Materials. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
- Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
- California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Retina Go! Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Retina Go! Service are operated by us in the United States. Those who choose to access the Retina Go! Service from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of California, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Los Angeles, California.
- How to Contact Us. You may contact us regarding the Retina Go! Service or these Terms at: 631 Wilshire Blvd. Ste 301, Santa Monica, CA 90401 or by e-mail at [email protected]