Updated: July 6, 2014
Blue Octy, LLC (" Blue Octy ", " we ", or " us ") provides Services (as defined below) to you, the user on the chumby website, currently located at http://www.chumby.com (the " Website ").
1.1 "Registered User" means either (a) an owner of a chumby Device who has registered this chumby Device on the Website, or (b) a user who has registered on the Website the create a Virtual chumby, or (c) a user who has registered a chumby-enabled mobile phone or television on the Website
1.2 "chumby Network" means the services that can be accessed only by a Registered User.
1.3 "Registered User Account"means the account maintained in Blue Octy's records that contains information about the Registered User.
1.4 "Content" means any work of authorship, including, without limitation, Applications, listings, postings, messages, text, files, images, photos, video, sounds, or other materials posted on or transmitted through the Services or through any Application.
1.5 "chumby Device" means the chumby hardware product distributed by chumby that you use to access the Services and to display, execute and share Applications.
1.6 "chumby Online Store" means the chumby online store on the Website.
1.7 "chumby Online Store Item" means any item, including chumby Devices and accessories, that Blue Octy offers for sale through the chumby Online Store.
1.8 "Services" means the services we offer through the Website (including the Website itself, the chumby Online Store — but excluding any chumby Online Store Items that are ordered through the chumby Online Store — and the chumby Network), and any other feature, content or application offered from time to time by chumby in connection with the Website, subject to the terms and conditions of this Agreement.
1.9 "Virtual chumby" means a virtual representation of a chumby Device that can be set up for a Registered User and/or others to access online.
1.10 "Visitors" are visitors of the Website who do not register with Blue Octy.
1.11 "Applications" are small applications that are developed by us or third parties (including, without limitation, other Registered Users) to be displayed or executed via the chumby Device and Virtual chumby in accordance with the requirements set forth on this webpage and which we make available through the chumby Network.
2. Your Blue Octy Account
2.1 Registration. By registering with chumby to become a Registered User, 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; (c) you are thirteen (13) years of age or older; and (d) your use of the Services does not violate any applicable law or regulation. Your profile may be deleted without warning if we believe that you are younger than 13.
2.2 Password. When you sign up to become a Registered User, you will also be asked to choose a username and a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the Registered User Account, username or password of another Registered User at any time You agree to notify chumby immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your Registered User Account.
2.3 Fees. Blue Octy provides the Services in connection with the chumby Network it two tiers: (i) Non-Paying Users, who receive a limited version of the service at no charge, and (ii) Paying Users, who receive a more comprehensive version of the service based on a subscription Fee. Blue Octy reserves the right to change its fees from time to time, add or remove tiers, and add or remove payment options at any time at its sole discretion.
2.4 Term. This Agreement shall remain in full force and effect while you use the Services or are a Registered User. Blue Octy may terminate your Registered User Account if (i) you are in breach of this Agreement; (ii) chumby decides in it sole discretion to stop providing the applicable Services; or (iii) if you have not registered a chumby Device upon sending notice to you at the then-current e-mail address in your Registered User Account. If you terminate your Registered User Account for which you paid fees, Blue Octy has no obligation to refund you any fees. You understand that any termination of this Agreement and your Registered User Account involves deletion of your Registered User Account information from our live databases. Blue Octy will not have any liability whatsoever to you for any termination of your account or related deletion of your information.
3. Conditions of Sale
3.1 Eligibility; Credit Card Terms. To order any chumby Online Store Item from the chumby Online Store, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction. You will be required to (a) provide us with a valid credit card number (VISA, MasterCard, American Express or any other issuer then accepted by us) and associated payment information at the time you order chumby Online Store Items, including all of the following: (i) your name as it appears on the card, (ii) the credit card type, (iii) the date of expiration of your credit card, (iv) billing address, and (v) any activation numbers or codes needed to charge your card. Blue Octy currently does not accept cash, checks or any other payment form not described above, although in the future we may change this policy. Your credit card issuer agreement governs your use of your designated credit card and you must refer to these agreements and not this Agreement to determine your rights and liabilities as a cardholder. You agree that no additional notice or consent is required before Blue Octy invoices the credit card account for all amounts due and payable. By providing chumby with your credit card number and associated payment information, you agree that Blue Octy is authorized to immediately invoice your account for all fees and charges due and payable to Blue Octy as a result of your purchase of any chumby Online Store Items. You agree to immediately notify Blue Octy of any change in your billing address or the credit card used for payment hereunder. Blue Octy reserves the right, at any time, to change its prices and billing methods for chumby Online Store Items sold, either immediately upon posting on the Website, or by e-mail delivery to you.
3.2 Fees and Charges. You agree to pay all fees and charges incurred in connection with your orders through the chumby Online Store (including any taxes imposed on your orders and purchases, including, but not limited to, sales, use or value-added taxes) at the rates in effect when the charges were incurred. Blue Octy may automatically charge and withhold such taxes for orders to be delivered to addresses within any jurisdictions that it deems is required.
3.3 Disputes. You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: Blue Octy Customer Service, 9912 Ironwood Place, San Diego, CA, 92131 or by contacting Customer Service at firstname.lastname@example.org. If Blue Octy does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Blue Octy or its agents.
3.4 Returns. All sales of chumby Online Store Items are subject to Blue Octy's then-current return policies that can be found at http://www.thechumbystore.com/shipping-returns/.
3.5 Order acceptance policy. Your receipt of an electronic or other form of order confirmation does not signify Blue Octy's acceptance of your order, nor does it constitute confirmation of our offer to sell. Blue Octy reserves the right at any time after receipt of your order to accept or decline your order for any reason. Blue Octy further reserves the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. Your order will be deemed accepted by Blue Octy upon our delivery of the chumby Online Store Items that you have ordered. We may require additional verifications or information before accepting any order.
3.6 Title and Risk of Loss. All sales of chumby Online Store Items are made Ex Works (Incoterms 2000) Blue Octy's designated point of shipment, and title and risk of loss to each shipment of the chumby Online Store Items shall pass to you when Blue Octy makes such shipment available to a carrier.
4. Proprietary Rights
Blue Octy does not claim ownership in any Content that you post on the Website, that you provide or make otherwise available to us, but in order to provide you and the other Registered Users with the Services, we need certain rights to such Content, as set forth below in Subsection 4.1. In return, we also grant you certain use rights to the Content that Blue Octy (or its licensors) owns and uses to provide the Services to you, as set forth below in Subsection 4.3.
4.1 Your Content. By posting any Content through the Services (either directly or by providing a link to such Content) or by providing or making available such Content to Blue Octy in any way, you hereby grant to Blue Octy, an unrestricted non-exclusive, fully-paid and royalty-free, license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, perform, display, and distribute such Content throughout the world. For avoidance of doubt, this license permits distribution to chumby Devices and other devices. For each Application you post, this license will terminate when you remove your Application using the process described in Section 4.2 and it is no longer available via the chumby Network; otherwise this license is perpetual and irrevocable. No compensation will be paid with respect to the Content that you submit, upload, post, transmit or otherwise make available through the Services. You should only upload, provide or make available Content to the Services that you are comfortable sharing with others under the terms and conditions set forth herein. You acknowledge and agree that Blue Octy may create Content that is similar to the Content that you have created, or based on your Content.
4.2 Removal of Your Applications. You may remove Applications you post through the Services at any time.
4.3 chumby Service Content. The Services contain Content of Blue Octy and its licensors ("chumby Service Content"). Blue Octy and its licensors (including, without limitation, Registered Users) retain ownership of all of their proprietary rights in the chumby Service Content and the Services. Provided that you are a Registered User, and subject to the terms and conditions of this Agreement, Blue Octy hereby grants you a limited, revocable, nonsublicensable license under intellectual property rights licensable by chumby to (i) download Applications from the chumby Network to your chumby Device (ii) reproduce, execute, display, and perform Applications on your chumby Device; (iii) execute, display, and perform Applications on your Virtual chumby; (iv) distribute Applications to other Registered Users solely via the chumby Network; and (v) download, view, copy and print other chumby Service Content (excluding Applications) from the Services in each case solely for your personal use in connection with viewing the Website and using the Services. If you are a Visitor, Blue Octy hereby authorizes you to download, view, copy and print documents and graphics on the Website solely for personal, informational, non-commercial purposes.
4.4 Ownership and Restrictions. You acknowledge that all the intellectual property rights in the Content (other than the Content you provide) and Services are owned by Blue Octy or the Registered User who posted such Content or other Blue Octy licensors. Except as expressly permitted under this Agreement, you agree not to (i) modify, distribute, or create derivative works based on the Content and Services; and (ii) rent, lease, loan, or sell access to the Services; (iii) decompile, reverse engineer, or copy any Content (other than the Content you provide) or the Services for which the source code is not provided to you.
5. Acceptable Use and Conduct
You are solely responsible for any and all Content that is provided, made available, published or displayed (" posted ", as used herein) by or through your Registered User Account on the Services, including, without limitation, any e-mail, and for your interactions with other Registered Users.
5.1 Prohibited Content. You agree that you will not post any Prohibited Content. " Prohibited Content " includes Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person; (iii) involves the transmission of "junk mail", "chain letters," or unsolicited mass mailing, or "spamming,"; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) promotes, copies, performs or distributes an illegal or unauthorized copy of another person's work that is protected by copyright or trade secret law, such as, without limitation, providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music or links to pirated music files; (vi) is involved in the exploitation of persons under the age of 18 in a sexual or violent manner, or solicits personal information from anyone under 18; (vii) provides instructional information about illegal activities such as, without limitation, making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses and other harmful code; (viii) solicits passwords or personally identifying information for commercial or unlawful purposes from other Registered Users; (ix) except as expressly approved by chumby, involves commercial activities and/or promotions such as, without limitation, contests, sweepstakes, barter, advertising, or pyramid schemes; (x) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; (xi) constitutes, promotes, or is used primarily for the purpose of dealing in: counterfeit goods, items subject to US embargo, illegal drugs and paraphernalia, stolen products and items used for theft, unlicensed trade or dealing in stocks or securities, gambling items, professional services regulated by state licensing regimes or non-transferable items; or (xii) otherwise violates the terms of this Agreement or creates liability for Blue Octy. You represent and warrant that: (a) you own the Content posted by you on the Service or otherwise have the right to grant the license set forth in this Agreement and (b) your Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person.
5.2 Disclaimer. Content from other Registered Users, advertisers, and other third parties is made available to you through the Services. Blue Octy takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is chumby liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, chumby is not liable for any statements, representations or Content provided by any Registered User on any Application download webpage, in any forum, or other area of the Services that allow the posting of any type of Content.
5.3 Breach. Any use of the Application download webpages, any forum, or other portions of the Services in violation of this Agreement and may result in, among other things, termination or suspension of your rights to use the Services. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Blue Octy's systems and customers, or to ensure the integrity and operation of Blue Octy's business and systems, Blue Octy may access and disclose any information and Content it considers necessary or appropriate, including, without limitation, user profile information (i.e. name, email address, etc.), IP addressing and traffic information, usage history, and posted Content.
5.4 Enforcement by Blue Octy. Blue Octy has the right (but not the obligation) to review any Content and delete any Content that in the sole judgment of Blue Octy violates this Agreement or which may be offensive, illegal, violate the rights, harm, or threaten the safety of any Registered User or any other person, or create liability for Blue Octy or any Registered User. Blue Ocy reserves the right (but has no obligation) to investigate and take appropriate legal action in its sole discretion against you if you violate this provision or any other provision of this Agreement, including without limitation, removing the Prohibited Content from the Services, terminating your Registered User Account, reporting you to law enforcement authorities, and taking legal action against you. You are solely responsible for creating backup copies of and replacing any Content you post or store on the Services at your sole cost and expense. You understand and agree that Blue Octy is under no obligation to display, reproduce, or distribute the Content (including Prohibited Content) that you post.
5.5 Non-Commercial Use. The Services are for the personal use of Registered Users only and may not be used in connection with any commercial endeavors except those that are specifically approved in writing by the management of Blue Octy or in connection with Services expressly designated for commercial use. You will not engage in advertising to, or solicitation of, any Registered User to buy or sell any products or services through any Services. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from your Content without notice and may result in suspension or termination of your Registered User Account.
5.6 Registered User Interaction. You will not use any information obtained from the Services in order to harass, abuse, or harm another person, or in order to contact, advertise to, solicit, or sell to any Registered User or other user without such person's prior explicit consent. In order to protect the Registered Users from such advertising or solicitation, Blue Octy reserves the right to restrict the number of communications which a Registered User may send to other Registered Users in any twenty-four (24) hour period to a number which chumby deems appropriate in its sole discretion and to establish general policies and limits concerning your use of the Services.
5.7 No Disruption. You will not: (i) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services, or (ii) introduce software or automated agents to the Services so as to produce multiple accounts, generate automated messages, or to strip or mine data from the Services, or otherwise interfere with the Services in any way.
5.8 Miscellaneous. You will not attempt to impersonate another Registered User or person, including, without limitation, any employee of Blue Octy. You will use the Services in a manner consistent with any and all applicable laws and regulations.
6. Copyright Policy
It is the policy of Blue Octy to terminate the account of any Registered User who repeatedly infringes copyright upon prompt notification to chumby by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Services; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for Blue Octys's Copyright Agent for notice of claims of copyright infringement is as follows:
Blue Octy LLC
Attn: Copyright Agent/Chumby
9974 Scripps Ranch Blvd #160
San Diego, CA 92131
7. Third-Party Websites
The Services may contain links to third-party websites (" Third-Party Websites ") and third-party content ("Third-Party Content") (a) placed by Blue Octy as a service to those interested in this information; or (b) posted by other Registered Users. You use all such links to Third-Party Websites, and any Third-Party Content therein, at your own risk. Blue Octy does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Websites. To the extent such links are provided by Blue Octy, they are provided only as a convenience, and a link to a Third-Party Website or Third-Party Content does not imply Blue Octy's endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Website or Third-Party Content. Blue Octy accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Websites, or websites linking to the Website. When you leave the Website, our terms and policies no longer govern. You should review applicable terms and policies, including, without limitation, privacy and data gathering practices, of any Third-Party Website, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Blue Octy is not responsible for any incorrect or inaccurate Content posted on or made available through the Services by anyone else, whether caused by Registered Users or by any of the equipment or programming associated with or utilized in the Services. Blue Octy is not responsible for the conduct, whether online or offline, of any user of the Services. Blue Octy assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any Registered User communication. Blue Octy is not responsible for any problems or technical malfunction of any hardware and software due to technical problems on the Internet or at the Website or combination thereof, including, without limitation, any injury or damage to Visitors and/or Registered Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Services. Under no circumstances shall Blue Octy be responsible for any loss or damage, including, without limitation, personal injury or death, resulting from use of the Services or from any Content posted on the Services or transmitted to Registered Users, or any interactions between Registered Users of the Services, whether online or offline.
THE SERVICES ARE PROVIDED "AS-IS" AND AS AVAILABLE. BLUE OCTY EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BLUE OCTY MAKES NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
10. Limitation on Liability
IN NO EVENT SHALL BLUE OCTY BE LIABLE TO YOU OR FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF BLUE OCTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BLUE OCTY'S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY US DOLLARS ($50) AND THE AMOUNTS (IF ANY) YOU PAID TO BLUE OCTY FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM.
You hereby release Blue Octy, its officers, employees, agents and successors from claims, demands, any and all losses, damages, rights, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) any interactions with other Registered Users, or (ii) your participation in any offline chumby event.
You hereby waive California Civil Code Section 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor" and you waive any other similar provision of the laws of any other applicable jurisdiction.
12.1 Additional Terms. In order to participate in certain Services, you may be required to download software or Content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement.
12.2 Amendments. Blue Octy may modify this Agreement from time to time and such modification shall be effective: (1) upon posting by Blue Octy on the Website, for all Registered Users who first use the Services affected by such modification after the posting, or (2) thirty (30) days after posting by Blue Octy on the Website, for all existing Registered Users of the affected Services. If you do not agree to the modifications, you must cease your use of the Services.
12.3 Survival. The provisions under the following headlines will survive termination of this Agreement for any reason: Definitions, Proprietary Rights, Copyright Policy, Disclaimers, Limitation on Liability, Releases, Miscellaneous.
12.4 Indemnity. You agree to defend, indemnify, and hold Blue Octy, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees, made by any third party due to or arising out of your Content, out of your use of the Services in violation of this Agreement, and/or arising from your breach of any provision of this Agreement.
12.5 U.S. Export Controls. Content available in connection with the Services and chumby Online Store Items available through the chumby Online Store are subject to United States export controls. No Content may be downloaded from the Services and no chumby Online Store Items may be shipped, or otherwise exported or re-exported in violation of U.S. export laws. By downloading or using the Content or by ordering chumby Online Store Items through the chumby Online Store, you represent and warrant that such download, ordering, or use is not in violation of any such law.
12.6 Governing Law and Arbitration. This Agreement 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. Any claim or dispute in connection with this Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the foregoing arbitration clause does not apply for any reason, you agree to submit to the personal jurisdiction of the state courts located within San Diego County, California, and the federal courts in the Southern District for the purpose of litigating all such claims or disputes, which courts shall have exclusive jurisdiction of such claims or disputes. Notwithstanding the foregoing, Blue Octy may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.
12.7 Other. This Agreement is accepted upon your use of the Website or any of the Services or by you registering to be a Registered User. This Agreement constitutes the entire agreement between you and Blue Octy regarding the use of the Services. Your use of Software provided by Blue Octy is governed by the applicable license agreement provided by Blue Octy in connection with the Software. The failure of Blue Octy to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Any unauthorized use of any Blue Octy computer systems is a violation of this Agreement and certain federal and state laws, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. S 1030 et seq.), Section 502 of the California Penal Code and Section 17538.45 of the California Business and Professions Code. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Please contact us with any questions regarding this Agreement.You may also receive a copy of this Agreement (in ASCII text format) by e-mailing us at: email@example.com
12.8 Copyright/Trademark Information. Copyright © 2013, Blue Octy, LLC. All rights reserved. The trademarks, logos and service marks ("Marks") displayed on the Services are the property of Blue Octy or other third parties. You are not permitted to use these Marks without the prior written consent of Blue Octy or such third party which may own the Mark.