MobiLinc Terms of Service
1. License Granted. Upon and subject to acceptance by Licensee of these Terms, PortalShark hereby grants Licensee a non-exclusive, non-transferable and non-sub licensable license to use the System subject in each instance to these Terms and solely in connection with an ISY series device. The System may initially be accessed through the MobiLinc apps (MobiLinc Pro, MobiLinc HD, Orchestrated MobiLinc) (the “App”). Licensee will select a unique email address and password (“Account”) to access the System through the App; thereafter Licensee may access the System through the App, the mobile web interface, or one or more mobile device applications. Licensee acknowledges and agrees that PortalShark has and will retain all right, title, interest and ownership in and to the Service and the System, including, but not limited to, any trademarks, copyrights, patents and trade secrets with respect thereto or contained therein.
2. Service Fees. The initial term of the License granted hereunder is 30 days following Licensee’s creation of the Licensee’s Account, during which period the License is provided without additional charge. Prior to the end of such initial period, PortalShark will notify Licensee by e-mail or through the compatible mobile apps and if Licensee elects to continue use of the Service and extend the term of the License on an annual or monthly basis, Licensee must make payment arrangements through the site or mobile app to enter into a subscription agreement and in consideration for the extended term of the License granted to Licensee, Licensee agrees to pay the annual or monthly Service Fees specified in such subscription agreement, as they may be modified from time to time as provided in Section 12 hereof. If Licensee does not extend the initial term or any extended prior to its expiration, this License and Licensee’s ability to access the System will terminate. Licensee would then need to reactivate the System and pay the applicable Service Fees to resume use of the System. Licensee shall also pay any sales, use, excise, personal property or other taxes of similar nature levied upon Service Fees or Licensee’s use of the System (collectively, “Taxes”). If full payment for any extended term is not received when due, PortalShark may terminate the License and deactivate the Account without notice.
3. Use of System; Disclaimers. The System allows users to remotely activate lights, irrigation, security systems, thermostats, pool pumps, door locks, garage doors, and/or other household appliances that are connected to the ISY series controller, and to obtain information on the status and usage of and remotely monitor such items (e.g., garage door currently closed; garage door opened). More information about the functionality and capabilities of the System is available at www.mobilinc.com.
WARNING: To reduce the risk of SERIOUS INJURY or DEATH, NEVER permit children to operate or play with the Apps, and NEVER use App controls while driving. You are SOLELY responsible for the operation of the System and SHALL take such necessary precautions to ensure the safety of those around the System.
Licensee acknowledges and agrees that:
a. The System is NOT an “alarm” or security system, and is not intended to function or be used as such. PortalShark does not provide central station or other monitoring of the System or any items connected to the System; such monitoring is solely the responsibility of Licensee. The System as provided does NOT provide fire, heat, smoke, carbon monoxide, burglar, motion sensor, or other alarm or detection capabilities and should not be used as a substitute for appropriate home safety detectors or equipment or other items required by applicable laws or building codes.
b. Licensee is solely responsible for ensuring that all equipment connected to the System is correctly and safely installed and maintained in proper working order; PortalShark shall have no liability for the failure or malfunction of any device connected to or activated by the System, including the ISY series hardware and Licensee agrees that the hardware manufacturer is solely responsible for hardware failures or malfunctions.
c. Licensee is solely responsible for providing internet connectivity and electric power needed to operate the System. PortalShark shall have no responsibility for interruptions of electric power or internet connectivity, whether localized to Licensee or applicable to the System as a whole. PortalShark does not guarantee that the System will function error-free or without interruption, and shall have no liability for any damages as a result of System or Service unavailability for any reason.
d. The System may use “cookies” and IP addresses and/or retain user-specific information to enable the System to provide its intended functionality. If cookies are turned off, some System features may not be available (see Section 14 below for information about privacy matters). PortalShark is not responsible for any loss of System data, whether through power outage, failure of internet connectivity, or otherwise. If Licensee terminates this License or allows it to expire, Licensee data may not be preserved.
e. PortalShark does not warrant or represent that the functions contained in the System will meet Licensee’s requirements or the provisions of any state or federal law or building code, insurance requirements, or similar regulations.
f. Licensee understands that any application connected to the internet is subject to inherent risks common to the internet, such as hackers, viruses, et cetera. PortalShark shall not be responsible for wrongful acts of any third party committed through use of the internet that may affect Licensee or the System.
g. PortalShark warrants that the System will function substantially in accordance with the published specifications found on the Site, as updated from time to time. All other warranties relating to the System or the operation or use thereof, express or implied, are hereby disclaimed and excluded, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement.
4. Restrictions on Use. Licensee shall not use the System with any equipment for which it is not designed or that is not properly installed and in good operating condition. Licensee shall not reverse engineer or decompile the System, or permit or assist any other person to do so. Licensee shall be responsible for any use of the System by any person to whom Licensee makes its Account available. Licensee will use the System for Licensee’s own purposes only, and not for rent or for hire. By downloading, accessing and/or using the System or any Application, Licensee represents and warrants that Licensee is of legal age to form a binding contract.
5. Operational Information. Licensee is responsible for reviewing the instructions, FAQ and user information available within the Apps and ensuring that every authorized user understands how to operate the System, the Site and any Applications.
6. Password and Licensee Security Obligations.
a. Licensee will select an initial e-mail address and Password. Should Licensee lose its Password, PortalShark will issue a randomly generated replacement Password to Licensee; Licensee should immediately use the System to change such Password to a Password selected by Licensee. Licensee is encouraged to change its Password regularly. Licensee is responsible for requesting a new Password if needed for any reason. Repeated incorrect attempts to log on will result in deactivation of the Password for security purposes, and Licensee will need to request a new Password. In the event of a security breach of Licensee’s password, Licensee shall provide such assistance to PortalShark as may be requested by PortalShark in the investigation of any unauthorized use and any enforcement proceedings in connection therewith.
b. Licensee acknowledges that only one user log-in per account is available; any additional users Licensee chooses to authorize shall comply with these Terms and must use the same e-mail address and Password to log in to the System. Licensee is responsible for taking all steps as are necessary or prudent to safeguard its Password and ensure that any authorized users of the System comply with these Terms.
c. Licensee acknowledges that the System has multiple security setting options. PortalShark’s recommendation is to set the highest security level setting available by forcing the user to enter their password each time on startup of the App. However, Licensee has the option to set the System to a lower level of security if Licensee so chooses. PortalShark shall have no liability for unauthorized use of the System as a result of Licensee’s choice of security level settings.
7. Mobile Application Availability. PortalShark or associates may from time to time make available applications (“Applications”) allowing the System to be accessed and operated through mobile devices. PortalShark does not guarantee that the Applications will be available for, or function in connection with, all mobile devices.
8. Termination. Licensee may terminate Licensee’s use of the System without cause at any time; however, no refund will be issued for any unused portion of the License term. PortalShark may terminate Licensee’s access to the System if Licensee fails to pay Service Fees or if PortalShark determines that Licensee has violated these Terms. Termination shall not relieve Licensee of any obligation to pay Service Fees or other obligations accrued prior to the effective date of termination.
9. Indemnity and Release; Limitation of Liability.
a. Licensee agrees to indemnify, defend and hold PortalShark and associates harmless from any expense or damage arising or resulting from Licensee’s breach of these Terms.
b. Licensee hereby releases PortalShark and its agents, employees, and independent contractors from liability for any loss or damage, including any special, indirect, incidental or exemplary damages and consequential damages including, but not limited to, loss of anticipated profits or economic loss, even if PortalShark has been advised of the possibility of such loss or damage, in connection with or arising out of Licensee’s use of the System, or the interruption or loss of any service provided through the Site.
c. In the event of any breach of these Terms by PortalShark, Licensee’s sole remedy shall be, at PortalShark’s option, the re-performance of the affected service by PortalShark, or refund of the applicable Service Fee paid by Licensee for such service. Licensee agrees that PortalShark’s aggregate liability under any theory of recovery shall not exceed the lesser of $50 or the amount of Service Fees actually paid to PortalShark by Licensee for use of the System. This limitation is a material inducement for PortalShark to furnish the System to Licensee.
10. Compliance with Laws. Licensee agrees to comply with all Laws relating to its access to and use of credit information, and will not use the Site or the System for any illegal, improper or discriminatory purpose. Licensee acknowledges and agrees that Licensee remains at all times solely responsible for any required validation of the basis on which its credit decisions are made.
11. Notices. Licensee will address any written notice to PortalShark to 3951 E. Maplewood St. Gilbert, AZ 85297, or another address designated in writing by PortalShark to Licensee. PortalShark will address any written notice to Licensee to Licensee’s e-mail address provided when activating the System; Licensee hereby consents to receive all notices and other communications relating to the System, so long as Licensee uses the System and for a period of up to 7 days thereafter, at such e-mail address and agrees that Licensee is solely responsible for monitoring such e-mail address and updating the e-mail address if necessary by contacting PortalShark.
12. Agreement and Amendment. These Terms are effective upon acceptance by Licensee through its access of the Site or use of the System or Applications, supersede all prior agreements relating to the System, the Site and/or the Applications, and constitute the entire agreement between Licensee and PortalShark. There are no written or oral understandings that are not fully expressed in these Terms. Service Fees, and these Terms, are subject to change by PortalShark on thirty (30) days’ written notice to Licensee, which may be delivered by electronic mail or by posting on the Site.
13. Enforcement. These Terms shall be governed by the laws of the State of Arizona without regard to choice of law principles. You and we agree that if any Dispute arises hereunder, either you or we may demand in writing that the Dispute be arbitrated, in which case you and we agree that you and we will immediately stay any court proceedings and the plaintiff will submit the Dispute to binding arbitration by a single arbitrator under the “Supplementary Procedures for Consumer-Related Disputes” of the American Arbitration Association then in effect, in Phoenix, Arizona. More information about the AAA can be found at www.adr.org. We believe arbitration is an impartial means of resolving disputes that is usually faster and less expensive than going to court. If for any reason the AAA cannot hear the dispute, you and we agree to proceed before any mutually-agreed arbitrator or, if unable to agree, before an arbitrator appointed by the Court of Phoenix, Arizona. Each party shall be entitled to one substitution of arbitrator, without cause, as a matter of right. For any Dispute (or part of a Dispute) that is not subject to arbitration, you and we AGREE THAT ANY CLAIM SHALL BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, THEREBY WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION relating in any way to a Dispute, WAIVE ANY RIGHT YOU OR WE MAY HAVE TO A TRIAL BY JURY and agree to have such matter tried by a court without a jury. You and/or we will continue to have the following rights: 1) right to file for bankruptcy in court; 2) right to take legal action to enforce the arbitrator’s decision; and 3) right to request that a court of law review whether the arbitrator exceeded its authority. A “Dispute” is any controversy or claim that relates in any way to the System, the Site, any Application, and/or any question regarding whether a matter is subject to arbitration under these provisions. The arbitrator’s award shall be final and binding on all parties to the arbitration. Either party may enter judgment on the award in any court. If either you or we are required to enforce this Agreement in court, the prevailing party in such proceeding shall be entitled to its attorneys’ fees and costs incurred in doing so. Nothing in this Agreement shall give the arbitrator any authority, power, or right to alter, change, amend, modify, add to, or subtract from the provisions of these Terms. The parties agree that this provision shall be governed by the Federal Arbitration Act, 9 USC §1 et seq. The parties further agree that if any provisions hereof are found to be invalid, the remainder will remain in full force and effect, and shall be binding upon the parties hereto and their respective heirs, executors, representatives, employees, affiliates, successors, and assigns. With respect to any judicial action taken, the parties hereby agree to submit to the exclusive personal jurisdiction of state and federal courts situated in Phoenix, Arizona.