This is an agreement between you and Toshiba Visual Solutions Corporation (“TVS” or "we"). Before using any compatible device web apps, mobile apps, subscription service or accessing the TSB-SmartHome.com website, please read this entire document..
TVS provides: (1) a user account website that may be accessed at http://toshiba-smarthome.com/ (“Site”), (2) services accessible through the Site (“Web Apps”), (3) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), and (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”), all for use in conjunction with a compatible device (“Device”). Some TVS products and services can be used together or in ways that integrate with products and services from third parties, such as Amazon’s Alexa Voice Service. The term “Toshiba Smart Home Services” means the Site, Web Apps, Mobile Apps and Subscription Services.
The term “you,” as used in these Terms, means any person or entity who accesses or uses the Toshiba Smart Home Services and any person or entity who creates an Account and accepts these Terms. These Terms give you specific legal rights, and you may also have other legal rights in addition, 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 ACKNOWLEDGING THE AGREEMENT OR BY ACCESSING AND USING THE TOSHIBA SMART HOME SERVICES (INCLUDING THE SITE), YOU ARE ACCEPTING AND AGREEING TO THESE TERMS IN CONNECTION WITH THE ACCESS. YOU REPRESENT THAT YOU ARE A NATURAL PERSON OVER EIGHTEEN (18) YEARS OF AGE, OR THAT IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE YOU ARE EITHER AN EMANCIPATED MINOR OR HAVE THE LEGAL PERMISSION OF YOUR PARENT OR GUARDIAN TO ENTER INTO THIS AGREEMENT. YOU FURTHER REPRESENT THAT YOU MAY LEGALLY ENTER INTO THESE TERMS AND THAT YOU AGREE WITH THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT AND CEASE ACCESSING OR USING THE TOSHIBA SMART HOME SERVICES.
CERTAIN SECTIONS HEREIN DESCRIBE IMPORTANT LIMITATIONS OF THE TOSHIBA SMART HOME SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
Eligibility. You may use the Toshiba Smart Home Services only if you can form a binding contract with TVS and only if you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. You represent and warrant that you are over the age of 13 (or equivalent minimum age in the jurisdiction where you reside), and in the event you are between the age of 13 (or equivalent minimum age in the jurisdiction where you reside) and the age of majority in the jurisdiction where you reside, that you will only use the Toshiba Smart Home Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Toshiba Smart Home Services by individuals under the age of 13 (or equivalent minimum age in the jurisdiction where you reside) is strictly prohibited and is a violation of these Terms. The Toshiba Smart Home Services are not available to any users previously prohibited from using the Toshiba Smart Home Services by TVS.
Your Account. To use the Toshiba Smart Home 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 you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Toshiba Smart Home Services does not violate any U.S. 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 lowercase 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 immediately notify TVS of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. TVS is not liable for any loss or damage arising from your failure to comply with the above requirements.
Use of the Software. You may use the Device Software, Mobile Apps software and Web Apps software (collectively the “Software”) only on or in connection with your use of the Device, and you may only make personal and non-commercial use of the Software
Access to Toshiba Smart Home Services. Subject to these Terms, TVS grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Toshiba Smart Home Services by (i) using the Web Apps in connection with, and solely for the purpose of, controlling and monitoring the Devices you own or are authorized to control and monitor or otherwise accessing a service explicitly provided by TVS 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.
Automatic Software Updates. TVS may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Toshiba Smart Home Services and/or the Device 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 Toshiba Smart Home Services and the Device. 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 Toshiba Smart Home Services and the Device and you agree to promptly install any Updates that TVS provides. Your continued use of the Toshiba Smart Home Services and the Device is your agreement to these Terms with respect to the Toshiba Smart Home Services.
User Submissions. Certain materials may be displayed or performed on the Toshiba Smart Home 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 in the course of using the Toshiba Smart Home Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Toshiba Smart Home Services. Some content may be visible to others (for example, the Toshiba Smart Home Services may allow you to upload, post, or otherwise share video content). You may also post feedback, comments, questions, or other information on the Site. You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Toshiba Smart Home Services, or that you contribute in any manner to the Toshiba Smart Home 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 TVS all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Toshiba Smart Home Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Toshiba Smart Home 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. TVS reserves the right to remove any Content from the Toshiba Smart Home 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.
Restrictions of Rights. 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 Toshiba Smart Home Services; (ii) you agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Toshiba Smart Home Services; (iii) you agree not to access the Toshiba Smart Home Services in order to build a similar or competitive service; (iv) except as expressly stated herein, no part of the Toshiba Smart Home 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 communication network, computer, handheld mobile device, data, the Toshiba Smart Home Services, the Device, the Device 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 Toshiba Smart Home Services or violate the regulations, policies, or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Toshiba Smart Home Services by means other than through the interface that is provided by TVS; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Toshiba Smart Home Services. Any future release, update, or other addition to functionality of the Toshiba Smart Home Services shall be subject to these Terms.
Open Source. Certain items of independent, third-party code may be included in the Software 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. Please click here to review important information relating to licenses regarding open source software
Security. TVS cares about the integrity and security of your personal information. However, TVS 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.
Modification. TVS reserves the right, at any time, to modify, suspend, or discontinue the Toshiba Smart Home Services or any part thereof with or without notice. You agree that TVS will not be liable to you or to any third-party for any modification, suspension, or discontinuance of the Toshiba Smart Home Services or any part thereof.
Access Outside United States. You may access and use Toshiba Smart Home Services only in the United States. We may restrict access to Toshiba Smart Home Services from other locations. Although the Toshiba Smart Home Services may be accessible worldwide, the Devices and Toshiba Smart Home Services are not available to all persons or in all countries. If you choose to use the Toshiba Smart Home Services from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You will be bound by these Terms wherever you access or use the Toshiba Smart Home Services or Site.
Third-party Services. If you use a Third-party Service, such as Amazon’s Alexa Voice Service, we may exchange related information with that service, such as your zip code when you ask for the weather, your custom music stations, or the content of your requests. Your use of any Third-party Service is subject to this Agreement and any third-party terms applicable to such Third-party Service. If you do not accept the third-party terms applicable to a Third-party Service, do not use that Third-party Service. When using a Third-party Service, you are responsible for any information you provide to the third-party. TVS has no responsibility or liability for Third-party Services. Publishers of Third-party Services may change or discontinue the functionality or features of their Third-party Service.
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 TVS 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 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.
Ownership and Intellectual Property. You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Device, Device Software, and Toshiba Smart Home Services (i.e., the Sites, Web Apps, and Mobile Apps) are owned by TVS or its formerly, now or hereafter affiliates or our licensors. Your possession, access, and use of the Device, Device Software, and Toshiba Smart Home Services do not transfer to you or any third-party any rights, title, or interest in or to such intellectual property rights. TVS and its formerly, now or hereafter affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Toshiba Smart Home Services are licensed to you, not sold, under these Terms. You may only copy parts of the Toshiba Smart Home Services (including this Site) onto your own computer for your own personal use. You may not use the content of the Toshiba Smart Home Services in any other public or commercial way nor may you copy or incorporate any of the content of the Toshiba Smart Home Services into any other work, including your own web site without the written consent of TVS. You must have a license from us before you can post or redistribute any portion of the Toshiba Smart Home Services. Other than with respect to User Submissions, TVS retains full and complete title to all content on the Toshiba Smart Home 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 Toshiba Smart Home Services or any content therein.
Release Regarding Third Parties. TVS is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-party Devices and Services, Third-party Sites, Referred Vendors, Equipment, ISPs, and Carriers. TVS hereby disclaims and you hereby discharge, waive and release TVS 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 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.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
Agreed Usage and Limitations of Toshiba Smart Home Services. The Toshiba Smart Home Services are intended to be accessed and used for non-time-critical information. While we aim for the Toshiba Smart Home 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 TVS’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that TVS is not responsible for any damages allegedly caused by the failure or delay of the Toshiba Smart Home Services. We do not guarantee that the functionality of the Toshiba Smart Home Services or its content is accurate, reliable, always available, or complete. the Toshiba Smart Home Services may allow you to interact with or operate other products, such as lights, appliances, or locks, and TVS has no responsibility or liability for such products. You may encounter content through the Toshiba Smart Home Services that you find offensive, indecent, or objectionable. TVS has no responsibility or liability for such content.
No Life-Safety or Critical Uses of the Toshiba Smart Home Services. You acknowledge and agree that the Devices and the Toshiba Smart Home Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. TVS makes no warranty or representation that use of the Devices or Services with any third-party product or service will affect or increase any level of safety. YOU UNDERSTAND THAT THE PRODUCTS AND TOSHIBA SMART HOME SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM -- TVS WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY.All life threatening and emergency events should be directed to the appropriate response services.
Reliability of Notifications. You acknowledge that the Toshiba Smart Home 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 TOSHIBA SMART HOME SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON ANY DEVICE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM.
Temporary Suspension. The Toshiba Smart Home Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. TVS does not offer any specific uptime guarantee for the Toshiba Smart Home Services.
System 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 Devices; (ii) an Account; (iii) mobile clients such as a supported phone or tablet (required for some functionality); (iv) always-on broadband Internet access in your home with bandwidth sufficient to support the Devices you use; and (v) an Amazon account; and (vi) other system elements that may be specified by TVS. 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 Toshiba Smart Home Services may not work as described when the requirements and compatibility have not been met. In addition, you acknowledge that TVS may activate Wi-Fi on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Toshiba Smart Home Services, enable communication with the Device, and enable certain features.
Usage. You warrant, represent and agree that you will not use the Toshiba Smart Home 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; (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of any Account associated with the Toshiba Smart Home Services; (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 Toshiba Smart Home Services, or any processes that otherwise interfere with the proper working of the Toshiba Smart Home Services (including by placing an unreasonable load on the Toshiba Smart Home 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 Toshiba Smart Home Services.
Compliance with Privacy and Data Collection. Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Devices and Services. You agree that you (and not TVS) are responsible for ensuring that you comply with any applicable laws when you use the Devices and Services, including but not limited to (i) any laws relating to the recording or sharing of video or audio content that includes third parties, or (ii) any laws requiring notice to or consent of third parties with respect to your use of Devices.
Indemnity. You agree to defend, indemnify and hold TVS and its formerly, now or hereafter affiliates 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 out of (i) your use of the Devices or Services, (ii) your violation of these Terms, (iii) any User Submissions or Feedback you provide; or (iv) your violation of any law or the rights of any third-party. TVS reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TVS and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without TVS’s prior written consent. TVS will use practically reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
DIGITAL MILLENNIUM COPYRIGHT ACT. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Site, you may contact our Designated Agent at the following email address: TVS-TSB-SmartHome@ml.toshiba.co.jp. Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must include the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (2) a description of the copyrighted work or other intellectual property that you claim has been infringed; (3) a description of the material that you claim is infringing and where it is located on the Site; (4) your address, telephone number, and email address; (5) a statement by you that you have a good faith belief that the use of the materials on the Site of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (6) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. TVS will promptly terminate without notice the accounts of users that are determined by TVS to be “repeat infringers.” A repeat infringer is a user who has been notified of infringing activity more than twice and/or has had User Content removed from the Site more than twice.
Warranty Disclaimers. THE WARRANTY, IF ANY, FOR THE DEVICE AND DEVICE SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY. THE TOSHIBA SMART HOME SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND TVS 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. TVS AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE TOSHIBA SMART HOME 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 TVS OR THOUGH THE TOSHIBA SMART HOME SERVICES SHALL CREATE ANY WARRANTY. TVS 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 OR ANY HYPERLINKED WEBSITE OR SERVICE, AND TVS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES. TVS MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE TOSHIBA SMART HOME SERVICES, AND TVS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE TOSHIBA SMART HOME SERVICES. TVS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE TOSHIBA SMART HOME 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 ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) TVS BE 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 TOSHIBA SMART HOME SERVICES OR THE DEVICES, EVEN IF TVS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) TVS’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE DEVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO TVS OR TVS’S AUTHORIZED RESELLER FOR THE TOSHIBA SMART HOME SERVICES OR THE DEVICE 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. TVS DISCLAIMS ALL LIABILITY OF ANY KIND OF TVS’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL TVS BE 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 TOSHIBA SMART HOME SERVICES.
Dispute Resolution and Arbitration. PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
(a) Arbitration. TVS and you agree to arbitrate all disputes and claims that arise from or relate to these Terms or the Toshiba Smart Home Services in any way, except for claims arising from bodily injury. This agreement to arbitrate is intended to be broadly interpreted, including, for example:
claims arising out of or relating to any aspect of the relationship between us that is created by or involves these Terms or the Toshiba Smart Home Services, regardless of the legal theory;
claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us;
claims that arose before you accepted these Terms (such as claims related to disclosures or the marketing of the Toshiba Smart Home Services or the process for seeking approval to use the Toshiba Smart Home Services);
claims that may arise after the termination of your use of the Toshiba Smart Home Services or any agreement between us; and
claims brought by or against our respective subsidiaries, parent companies, members, affiliates (formerly, now or hereafter), as well as the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities, you, and TVS.
This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. It also does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. Nor does this arbitration agreement bar you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, you or TVS may seek injunctive or other equitable relief to protect your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction.
You agree that, by entering into this agreement, we are each waiving the right to a trial by jury or to participate in a class or representative action. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
(b) Notice of disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing. The notice to TVS should be sent via email to: TVS-TSB-SmartHome@ml.toshiba.co.jp. TVS will send notice to you at the email and/or mailing addresses associated with your account. Your notice to TVS must (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 60 days after the notice is received, you or we may commence arbitration.
(c) Arbitration procedures. The arbitration will be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless you and we agree otherwise, any arbitration hearings will take place in the county (or parish) where you are receiving Services. If the value of your claim is $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of 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. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of this arbitration provision or the arbitrability of disputes are for the court to decide. The arbitrator may consider but is not bound by rulings in other arbitrations between TVS and TVS users. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.
(d) Costs of arbitration. The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org or by calling the AAA at 1-800-778-7879). TVS will pay all AAA filing, administrative, and arbitrator fees for any arbitration that TVS commences. If you provided TVS with 60 days’ notice of your intent to arbitrate before commencing arbitration and the value of your claim is $75,000 or less, TVS will pay your share of any such AAA fees. If the value of your claim exceeds $75,000, the allocation of AAA fees will be governed by the AAA Rules (unless the law of your state requires TVS to pay all such fees). If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees shall be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse TVS for amounts that TVS paid on your behalf.
(e) No class arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.YOU AND TVS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(f) 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this section 11, you must notify TVS in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be emailed to TVS at the following address: TVS-TSB-SmartHome@ml.toshiba.co.jp. If you do not notify TVS in accordance with this section, you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance.
Such notification must include: (a) your name, (b) your account number or user identification, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with TVS through arbitration. This notification affects these Terms only; if you previously entered into other arbitration agreements with TVS or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and TVS.
(g) Future changes to arbitration provision. If TVS makes any changes to the Dispute Resolution and Arbitration section of these Terms (other than a change to the address at which TVS will receive notices of dispute, opt-out notices, or rejections of future changes to the Dispute Resolution and Arbitration section), you may reject any such change by sending us written notice via email within 30 days of the change to TVS-TSB-SmartHome@ml.toshiba.co.jp. It is not necessary to send us a rejection of a future change to the Dispute Resolution and Arbitration section of these Terms if you had properly opted out of the arbitration and class-action waiver provisions within the first 30 days after you first accepted these Terms. If you have not properly opted out of the arbitration and class-action waiver provisions in this section 11, by rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this arbitration provision, as modified by any changes you did not reject.
Disclaimer of Warranties and Limitation of Liability. In no event will our or our licensors' or our service providers' aggregate liability with respect to any claim arising from or relating to this Agreement or your use of any Device exceed fifty dollars ($50).
Changes to these Terms. TVS 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 Toshiba Smart Home Services. Continued use of the Toshiba Smart Home Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms.
Governing Law. The courts in some countries will not apply California law to some types of disputes. 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 Devices and Toshiba Smart Home 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 Los Angeles County, California for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
Entire Agreement/Severability. These Terms constitute the entire agreement between you and TVS regarding the use of the Toshiba Smart Home Services. Any failure by TVS 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.
Survivability. The obligations in Sections 1-3, 8-11, 17-19, 24-29, 31, 21, 34 and 37 will survive any expiration or termination of these Terms.
Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without TVS’s prior written consent. These Terms may be assigned by TVS without restriction. These Terms are binding upon any permitted assignee.
Notifications. TVS 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, mobile notifications or hard copy.
Disclosures. Please see above for TVS’s address. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Copyright/Trademark Information. Copyright © 2017, Toshiba Visual Solutions Corporation. All rights reserved. AMAZON and the AMAZON logo are trademarks of Amazon, Inc. or its affiliates. All other trademarks, logos, and service marks (“Marks”) displayed on the Toshiba Smart Home Services are the property of TVS or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of TVS or such respective holders. TVS 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.