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Stomio Terms of Service

Last Modified: Jan 10th, 2022

Thank you for using the Stomio website at stomio.io (the “Site”) and using Stomio, Inc.’s (“Company” or “we” or “our” or “us”) corresponding service that allows, among other things, companies (“Organizations”) and their personnel to facilitate their beta testing (“Testing”) processes, including functionality to (i) send out Testing invitations to beta testers (“Testers”), (ii) manage and track Testers’ acceptance of Organizations’ testing terms and conditions (“Testing Terms”); (iii) track and manage Testing and feedback from Testing; and (iv) track shipment and disposition of Organizations’ beta test products (“Test Products”) (such service collectively with the Site, the “Service”).  These Terms of Service (“Agreement”) governs Organizations’ (and their personnel’s’) and Testers’ (as applicable, “users”, “you”, “your” and correlatives of the foregoing) browsing, viewing and other use of the Service. In the event an Organization has a separate agreement with the Company that governs rights and obligations between Organization and Company with respect to the Service (“Other Agreement”), such Other Agreement shall control with respect to such Organization’s use of the Service to the extent set forth in such Other Agreement. This Agreement shall apply to all Testers’ use of the Service for all purposes.

Please read this Agreement carefully, as it (among other things) provides in Section 17 that you and the Company will arbitrate certain claims instead of going to court and that you will not bring class action claims against the Company.  Please only create a Service account or otherwise use the Service if you agree to be legally bound by all terms and conditions herein.  If you are viewing this on your mobile device, you can also view this Agreement via a web browser at stomio.io/terms-of-service.  Your acceptance of this Agreement creates a legally binding contract between you and the Company.  If you do not agree with any aspect of this Agreement, then do not create a Service account or otherwise use the Service.

Note for Children.  Use of the Service by anyone under the age of 18 is prohibited.  By using the Service, you represent and warrant that are you at least 18 years of age.

The Company’s Privacy Policy, at stomio.io/privacy/privacy-policy (the “Privacy Policy”), describes the collection, use and disclosure of data and information by the Company in connection with the Service.  The Privacy Policy, as may be updated by the Company from time to time in accordance with its terms, is hereby incorporated into this Agreement, and you hereby agree to the collection, use and disclose practices set forth therein.

1. How it Works. 

1. The Service allows Organizations to manage Testing by providing functionality where Organizations can define one or more Testing programs and related Test Products, and then (i) send out Testing invitations to Testers, (ii) manage and track Testers’ acceptance of Testing Terms; (iii) track and manage Testing and feedback from Testing; and (iv) track shipment and disposition of Test Products.
2. If you are a Tester, the Service may provide you Testing Terms as a condition to participating in Testing. To the extent that there is a conflict between the Testing Terms and this Agreement, this Agreement shall control with respect to your use of the Services, but the Testing Terms shall otherwise control. By way of example and not limitation, in the event that this Agreement provides that Company has certain rights to use User Content (as defined below) in connection with operation of the Service or otherwise, the Testing Terms shall not be construed to derogate from such Company rights. You expressly agree that the scope of the Testing Terms shall not control with respect to any aspect of your use of the Service, and that this Agreement shall control, except solely to the extent an Organization has an Other Agreement with Company.
3. If you are a Tester, you understand and agree that this Agreement solely governs your use of the Service in connection with Testing. All other aspects are governed by the Testing Terms. Whether you are a Tester or an Organization, you agree that Company has no responsibility or liability in connection with the Testing Terms, nor is Company a party to the Testing Terms. 

1. Login Credentials.  

1. Login Credentials. In order to use portions of the Service, you may be required to register by providing certain information. We may ask you to complete a registration form and create a username and password (“Login Credentials”). You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your account (including, without limitation, financial obligations).  You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken.  We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials.
2. Account Information. During your registration, you shall give truthful information about you (such as name, email address, shipping address phone number and other information we and/or an applicable Organization may request]) (collectively, together with the information described in Section 2.1, “Account Information”).  You are responsible for keeping your Account Information up to date and ensuring that it is accurate.  We may contact you to verify your Account Information.  You represent, warrant and covenant to us that all Account Information is and shall remain accurate and up to date.

1. Representations and Warranties. You represent, warrant and covenant that, in connection with this Agreement or the Service, you will not and will not attempt to: (i) violate any laws, third party rights or our community guidelines and other policies; (ii) re-join or attempt to use the Service if the Company has banned or suspended you; (iv) defraud the Company or another user; or (iii) use another user’s account or allow another person to use your user account.  Any illegal activities undertaken in connection with the Service may be referred to the authorities.
2. Ownership; Proprietary Rights. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Service and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials.  You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying the Company Materials. The Company reserves the right to modify or discontinue the Service or any version(s) thereof at any time in its sole discretion, with or without notice. You may provide suggestions, comments, ideas, or other information, in any form, in connection with the Company Materials (“Feedback”), and you hereby grant to Company a nonexclusive, perpetual, irrevocable, royalty-free and fully paid up license to use, copy, display, modify, create derivative works of and distribute any such Feedback, for the purpose of improving the operation, functionality or use of its existing and future product offerings.
3. Third Party Sites. The Service may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them.
4. Payments.

1. Payment processing for the Service is provided by such third-party payment processor as we may utilize from time to time (“Payment Processor”). Company does not collect or store your credit card information. You can find out more about both our privacy practices in our Privacy Policy. By providing a credit card or other payment method accepted by Company, you represent and warrant that you are authorized to use the designated payment method. If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your account may be suspended or cancelled. You must resolve any problem we or our Payment Processor encounters in order to proceed with your use of your account.

By signing up for any paid Service account and providing your payment information, you agree to pay us (and authorize our Payment Processor to charge you) the recurring and/or nonrecurring fees as displayed to you at the time you create your account and as may be modified from time to time as described in this Agreement, as well as any other fees you expressly choose to incur in connection with your use of the Service.  Unless otherwise specified upon enrollment, for subscription products or services, your payment method will be authorized for up to a month for the applicable Service account type and on a monthly basis thereafter until you cancel the subscription. You acknowledge and agree that the payment method provided by you will be automatically charged the fees you incur in connection with your use of the Service, and represent and warrant that you have all necessary rights relating to such payment instrument to authorize Company to make such charges.  Your use of the Service may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via e-mail) provided by us at least ninety (90) days in advance of the payment date for which the modification would be effective.  You may at any time cancel your account as set forth below if you do not agree to any modified fees.  All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by Company from time to time, as indicated at the time of payment) and are non-refundable.  

7. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING US AT support@stomio.io OR BY DOWNGRADING YOUR ACCOUNT IN THE SETTINGS SECTION ON THE WEBSITE.  IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY STILL USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION MONTH.  TO NOT BE CHARGED FOR YOUR SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION MONTH, YOU MUST CANCEL YOUR SUBSCRIPTION AT LEAST THIRTY (30) DAYS PRIOR TO THAT MONTH, OR YOU WILL OTHERWISE BE CHARGED FOR THAT MONTH’S SUBSCRIPTION.  ALL CANCELLATION REQUESTS RECEIVED LESS THAN THIRTY (30) DAYS BEFORE THE FOLLOWING SUBSCRIPTION MONTH WILL APPLY TO THE FOLLOWING CYCLE.
8. User Content

1. The Service may allow Organizations and Testers to upload, post and share text, images, audio and video, including in a manner such that it may be viewed by other end users of the Service for the applicable Organization (“User Content”).  You acknowledge that all User Content is stored on and made available through the Service by the Company’s servers and not on your device. For clarity, end users will only be able to view User Content related to the applicable Organization and not other Organizations.
2. You understand that all User Content is provided to you through the Service only on an “as-available” basis and the Company does not guarantee that the availability of User Content will be uninterrupted or bug free. You agree you are responsible for all of your User Content and all activities that occur under your user account.
3. You hereby grant the Company a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, display, transmit and prepare derivative works of your User Content (i) to the extent necessary to provide the functionality of the Service to you and other users; and (ii) for Company’s internal business purposes (such as analyzing usage of and developing and improving Company’s products and services). Additionally, Company may provide User Content (a) to its third-party service providers to assist Company in making the Service available; (b) as may be required by law or legal process; and (c) for its business purposes, where it is aggregated with data unrelated to you and where neither you nor any other user are identified.  
4. Tester hereby grants to Organization a non-exclusive license to access, view and/or download your User Content as permitted by the functionality of the Service and this Agreement and as otherwise set forth in the Testing Terms.
5. In connection with your User Content, you further agree that you will not: (i) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant the Company all of the license rights granted herein; (ii) use material that is unlawful, defamatory, libelous, threatening, pornographic, obscene, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate; or (iii) post advertisements or marketing content or solicitations of business, or any content of a commercial nature. The Company may investigate an allegation that any User Content does not conform this to Agreement and may determine in good faith and in its sole discretion whether to remove such User Content, which it reserves the right to do at any time. If you are a copyright holder and believe in good faith that your content has been made available through the Service without your authorization, you may follow the process outlined at [url] to notify the Company’s designated agent (pursuant to 17 U.S.C. § 512(c)) and request that the Company remove such content.

7. Prohibited Uses. As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by this Agreement. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of it.  You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service.  You agree not to scrape or otherwise use automated means to access or gather information from the Service, and agree not to bypass any robot exclusion measures we may put into place.  In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
8. Suspension; Termination. You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account by contacting us at support@stomio.io. We may terminate your access to or use of the Service and/or terminate this Agreement at any time if: (i) in our sole discretion, such action is necessary to prevent material errors or harm to any system or network, or to limit Company’s liability; or (ii) you attempt to access or use the Service in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to other Company customers or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation. Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.  Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.    Sections 1.2, 1.3, 2.1 and 3 through 16 will survive any termination of this Agreement.
9. Disclaimers; No Warranties. THE SERVICE AND ANY USER CONTENT, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10. Indemnification.

1. You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors and employees, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, (any of the foregoing, a “Claim”) arising out of or relating to your use or misuse of the Service, breach of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
2. Company agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against you or your affiliates, or your or their directors, officers and employees (“Your Indemnitees”), alleging that the Company technology underlying the Service infringes such third party’s intellectual property rights (an “IP Claim”), provided that you provide Company with: (i) prompt written notice of the IP Claim, except that any failure to provide this notice promptly only relieves Company of its responsibility pursuant to this Section 12.2 to the extent its defense is materially prejudiced by the delay; (ii) sole control over the defense and settlement of the IP Claim; and (iii) all assistance, information and authority reasonably required for the defense and/or settlement of the IP Claim. Company will pay those amounts finally awarded by a court of competent jurisdiction against Your Indemnitees or payable pursuant to a settlement agreement agreed to by Company with respect to the IP Claim. If Company, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Company may, at its option, (a) obtain a license from such third party claimant that allows you to continue the use of the Service, (b) modify the Service so as to be non-infringing, or (c) if neither (a) nor (b) is available to Company on commercially reasonable terms, terminate this Agreement upon written notice to you. Company will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Service at your direction; (y) is based on the combination or use of the Service (or any component of either) with any software, hardware, system, method, device or materials not provided by Company (including without limitation any User Content); or (z) results from your use of the Service in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 12.2 sets forth the entire liability of Company and your sole and exclusive remedy in the event of any claim that the Service infringes any third party intellectual property right.

7. Limitation of Liability and Damages. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL EITHER PARTY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THE SERVICE, INCLUDING YOUR USE THEREOF, EVEN IF SUH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY, IN WHICH CASE EACH PARTY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE EXCEED ONE THOUSAND U.S. DOLLARS.
8. Dispute Resolution.

1. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of California, without reference to its conflict of laws rules. If your are an individual residing in the United States or an entity formed and registered in the United States, the parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in San Francisco, California.  This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section.  Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section.  If you’re an individual not residing the United States or an entity not formed and registered in the United States, all disputes arising out of or in connection with this Agreement shall be finally settled in San Francisco, California under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) and judgment upon the award rendered may be entered in any court having jurisdiction thereof. The arbitrator shall have authority to grant any equitable and legal remedies that would be available in any judicial proceeding instituted to resolve a dispute. The number of arbitrators shall be one, appointed in accordance with the ICC rules. The decision of the arbitrator as to any claim or dispute shall be final, binding, and conclusive upon the parties. The language to be used in any such proceedings shall be English. The ICC’s Expedited Procedure Provisions shall not apply. No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen.  The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs. Notwithstanding anything to the contrary, nothing in this Agreement shall be construed to prevent either Party from petitioning any court of competent jurisdiction for injunctive or other equitable relief. 

7. Miscellaneous. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the Service user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.  In the event that you are a paid customer of the Service, notwithstanding the term of this Agreement in respect of your subscription, if any Change would materially and negatively impact your rights under this Agreement, you may terminate this Agreement without additional liability by providing written notice to Company within thirty (30) days of your receipt of notice of such Change. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.  You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to arbitration under Section 14 shall be filed only in the state or federal courts in California (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction.  This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
8. More Information; Complaints. The services hereunder are offered by Stomio, Inc., located at 2933 McClure St. Apt 14, Oakland, CA, USA 94609, telephone: 510-388-6332.  If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.