Terms of Service
Owaves’ mission is to help you PLAN and FOCUS on your health and wellness goals. These Terms of Service (“Terms) apply to your access and use of the Owaves Service. The “Owaves Service” includes our software, applications, websites, APIs, products and services.
These Terms are an agreement between you and Owaves, Inc., P.O. Box 230970, Encinitas, California, 92023. When the Terms mention “Owaves,” “we,” “us,” or “our,” they refer to the party to your agreement that provides you with the Owaves Service.
You must accept these Terms to create an Owaves account and to access or use the Owaves Service. If you do not have an account, you accept these Terms by using any part of the Owaves Service. If you do not accept these terms, please do not create an account or use the Owaves Service.
2. USE OF THE OWAVES SERVICE
Persons under the age of 13, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the Owaves Service unless their parent has consented in accordance with applicable law. Additionally, you cannot access or use the Owaves Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the Owaves Service.
You may only connect to the Owaves Service using (i) our mobile applications and software, or approved third-party applications, software, or devices; or (ii) our websites (“Authorized Connections”).
3. CREATING AN ACCOUNT
Full use of the Owaves Service requires that you create an account by providing us with information such as your full name and a valid email address, as well as a strong password. You are responsible for all activity that occurs in association with your account. Owaves is not liable for any loss or damages caused by your failure to maintain the confidentiality of your account credentials. Please contact our team if you discover or suspect any security breach related to the Owaves Service or your account.
4. NECESSARY EQUIPMENT
Full use of the Owaves Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the Owaves Service and it is your responsibility to ensure the equipment’s functionality. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges.
5. POSTING YOUR CONTENT ON THE OWAVES SERVICE
Owaves may enable you to post, upload, store, share, send, or display photos, images, video, data, text, music, exercise regimens, food logs, recipes, comments, and other information and content (“Your Content”) to and via the Owaves Service. You retain all rights to Your Content that you post to the Owaves Service. By making Your Content available on or through the Owaves Service you hereby grant to Owaves a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute Your Content, in whole or in part, including your name and likeness, in any media. The rights you grant us in this Section 5 are only for the limited purpose of offering and improving the Owaves Service.
You are responsible for Your Content. You represent and warrant that you own Your Content or that you have all rights necessary to grant us a license to use Your Content as described in these Terms.
You represent and warrant that Your Content, the use and provision of Your Content on the Owaves Service, and your use of the Owaves Service will not (a) infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (b) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) be fraudulent, false, misleading, or deceptive; (d) be defamatory, obscene, pornographic, vulgar, or offensive; (e) promote discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (f) be violent or threatening or promote violence or actions that are threatening to any person or entity; or (g) promote illegal or harmful activities or substances.
You further agree not to (1) upload any content that contains software viruses or is designed to interrupt, destroy, or limit the functionality of any equipment or services, or that contains other harmful, disruptive, or destructive files or content; (2) use or attempt to use another user’s account without authorization, or impersonate any person or entity; (3) harvest, solicit, or collect information of other users for any reason whatsoever, including, without limitation, for sending unsolicited communications; (4) post, advertise, or promote products or services commercially, or upload any content that is advertising, promotional material, junk mail, spam, or a contest or sweepstake, or that furthers or promotes criminal activity; or (5) use the Owaves Service in any manner that, in our sole discretion, is objectionable or restricts or inhibits any other person from using or enjoying the Owaves Service, or which may expose us or our users to any harm or liability of any type.
Owaves may, in its sole discretion, alter, remove, or refuse to display any of Your Content, and may forbid you from posting, uploading, storing, sharing, sending, or displaying Your Content to and via the Owaves Service.
6. OWAVES’ RIGHTS
“Owaves Content” includes any photos, images, graphics, video, audio, data, text, music, exercise regimens, food logs, recipes, comments, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through the Owaves Service. Owaves Content, the Owaves Service, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. We reserve all rights not expressly set forth in these Terms. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Owaves Service. Our logos and any other Owaves trademarks that may appear on the Owaves Service, and the overall look and feel of the Owaves Service, including page headers, graphics, icons, and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, product, and service names and company names or logos mentioned on the Owaves Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
7. WHAT YOU CAN DO ON THE OWAVES SERVICE
The Owaves Service is intended for your personal use.
Owaves grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the Owaves Service, (2) access and view the Owaves Content, (3) access and use the software and mobile applications provided by the Owaves Service, and (4) use the software that is embedded into Owaves devices as authorized in these Terms. With respect to items (3) and (4), this license includes any third-party software embedded in any Owaves Service. This license is provided solely for your personal, noncommercial use and enjoyment of the Owaves Service as permitted in these Terms.
You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the Owaves Content, Owaves Service or any portion thereof (including any third-party software), except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Owaves or its licensors, except for the licenses and rights expressly granted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Owaves Service: (1) use, display, mirror, or frame the Owaves Service or any individual element within the Owaves Service, including the layout and design of any page, without Owaves’ express written consent; (2) use Owaves’ name, any Owaves trademark or logo, or any Owaves proprietary information without Owaves’s express written consent; (3) access or tamper with non-public areas of the Owaves Service, Owaves’ computer systems, or the technical delivery systems of Owaves’ providers; (4) test the vulnerability of any Owaves system or breach any security or authentication measures; (5) circumvent any technological measure implemented by Owaves or any of Owaves’ providers or any other third party (including another user) to protect the Owaves Service; (6) access the Owaves Service or Owaves Content through the use of any mechanism other than through the use of an Authorized Connection, Owaves Service, or Owaves API; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that Owaves provides to you or any other part of the Owaves Service.
You are granted a limited, nonexclusive, and nontransferable right to create a text hyperlink to the Owaves Service for noncommercial purposes, provided that such link does not portray us or any of our products or services in a false, misleading, derogatory, or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing, or otherwise objectionable. This limited right may be revoked at any time in Owaves’ sole discretion.
9. OUR ENFORCEMENT RIGHTS
We reserve the right (but are not required) to remove or disable access to the Owaves Service, any Owaves Content, or Your Content at any time and without notice, and at our sole discretion, if we determine that the Owaves Content, Your Content, or your use of the Owaves Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the Owaves Service, and in response may take any action we may deem appropriate.
10. USE THE OWAVES SERVICE AT YOUR OWN RISK
If you rely on any Owaves Content or the Owaves Service, you do so solely at your own risk.
Our goal is to provide helpful and accurate information on the Owaves Service, but we make no endorsement, representation, or warranty of any kind about any Owaves Content, information, or services. The accuracy of the data collected and presented through the Owaves Service is not intended to match that of medical devices or scientific measurement devices.
We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the Owaves Service. Owaves Content and the Owaves Service may change from time to time or vary by geographic location. Maps, directions, and other GPS or navigation data, including data relating to your current location, may be unavailable, inaccurate, or incomplete.
Use of the Owaves Service should not replace your good judgment and common sense.
11. CONSULT YOUR DOCTOR BEFORE USING THE OWAVES SERVICE
The Owaves Service is not intended to diagnose, treat, cure, or prevent any disease. If you have a medical or heart condition, consult your doctor before using the Owaves Service, engaging in an exercise program, or changing your diet. If you experience a medical emergency, stop using the Owaves Service and consult with a medical professional. We are not responsible for any health problems that may result from training programs, consultations, products, or events you learn about through the Owaves Service. If you engage in any exercise program you receive or learn about through the Owaves Service, you agree that you do so at your own risk and are voluntarily participating in these activities.
12. DMCA/COPYRIGHT POLICY
Owaves respects the intellectual property of others and expects its users to do the same. It is Owaves’s policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe the rights of copyright holders.
13. FEEDBACK AND SUBMISSIONS POLICY
If you submit comments, ideas, or feedback to us, you agree that we can use, disclose, reproduce, distribute, and exploit them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by Owaves, or obtained from sources other than you.
14. CONTESTS AND GIVEAWAYS
Additional terms and conditions may apply to surveys, contests, giveaways, and other promotions sponsored by Owaves or its partners. It is your responsibility to carefully review those terms and conditions.
15. ALERTS AND NOTIFICATIONS
As part of your use of the Owaves Service, you may receive notifications, text messages, alerts, emails, and other electronic communications. You agree to the receipt of these communications. You can control most communications from the Owaves Service by using your device settings. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.
16. THIRD-PARTY SERVICES
17. CHANGES TO THE OWAVES SERVICE
Owaves may change or discontinue, temporarily or permanently, any feature, component, or content of the Owaves Service at any time without notice. Owaves is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the Owaves Service.
We reserve the right to suspend or deactivate your account or your access to certain aspects or all of the Owaves Service, or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such suspension, deactivation, or termination, we may delete or remove Your Content and other information related to your account. You may close your account at any time by contacting our team or through Settings > Delete Account. Upon any termination of these Terms or suspension, termination, or discontinuation of the Owaves Service or your account, the following provisions of these Terms will survive: Sections 1, 5, 6, 9, 10, 11, 13, 15, 16, 18, 19, 20, 21, 22, 23, 24.
THE OWAVES SERVICE AND OWAVES CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THESE TERMS OR THE OWAVES SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Owaves Service or Owaves Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the Owaves Service or any Owaves Content.
You will indemnify and hold harmless Owaves or its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the Owaves Service, (ii) Your Content, (iii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iv) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
21. LIMITATION OF LIABILITY
NEITHER OWAVES, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE OWAVES SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE OWAVES SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OWAVES HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL OWAVES’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE OWAVES SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO OWAVES FOR USE OF THE OWAVES SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO OWAVES, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OWAVES AND YOU.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
22. DISPUTE RESOLUTION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You agree that any dispute between you and Owaves arising out of or relating to these Terms of Service, the Owaves Service, or any other Owaves products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: Except as otherwise required by applicable law, the Terms of Service and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against Owaves, you agree to try to resolve the Dispute informally by contacting our team. We’ll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Owaves may bring a formal proceeding.
We Both Agree To Arbitrate: You and Owaves agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting us within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement.
Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Diego, California, or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Owaves will pay all arbitration fees for claims less than $75,000. Owaves will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate: Either you or Owaves may assert claims, if they qualify, in small claims court in San Diego (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Owaves products or Owaves Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with Owaves on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.
Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and Owaves agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Diego County, California. Both you and Owaves consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Owaves products or Owaves Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
23. GENERAL TERMS
Except as otherwise stated herein, these Terms constitute the entire and exclusive understanding and agreement between Owaves and you regarding the Owaves Service, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Owaves and you regarding the Owaves Service and Owaves Content.
We will notify you before we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the Owaves Service. When you use the Owaves Service after a modification becomes effective, you are telling us that you accept the modified Terms. You can review previous versions of these Terms in our archive.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without Owaves’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Owaves may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by Owaves under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or (ii) by posting to the Owaves Service. For notices made by email, the date of receipt on the message will be deemed the date on which such notice is transmitted.
Owaves’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Owaves. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
24. ADDITIONAL TERMS MAY APPLY
Additional terms may apply to certain products or services. In the event that there is a conflict between these Terms and any additional terms, the additional terms will control.
PLEASE CONTACT US IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.
You may contact us through our website or at our mailing address below.
P.O. Box 230970
Encinitas, CA 92023