VirtualKEY Terms of Service
Last updated: October 1, 2016
THESE TERMS ARE A CONTRACT BETWEEN YOU AND VIRTUALKEY AND GOVERN YOUR USE OF AND ACCESS TO THE SERVICE, THE EQUIPMENT, AND THE SITE (includes Website and Apps), WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION OR A FREE TRIAL. BY ACCESSING, BROWSING, AND/OR USING THE SERVICE, THE EQUIPMENT, OR THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND THAT YOU WILL COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS. YOUR USE IS SUBJECT TO THE MOST RECENT VERSION OF THESE TERMS POSTED ON THE SITE AND IT IS YOUR RESPONSIBILITY TO PERIODICALLY CONSULT THESE TERMS WHENEVER YOU INTEND TO USE THE SERVICE, THE EQUIPMENT, OR THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICE, THE EQUIPMENT, OR THE SITE.
1. Your Acceptance
1.1. Acceptance by Use.
1.2. Corporate Representative.
If You are entering into these Terms on behalf of an unincorporated association or some form of legal entity, then You represent and warrant that You have the authority to enter into these Terms on behalf of such organization or entity and that from and after Your acceptance of the Terms, then the Terms are binding upon the organization or entity You represent.
1.3. Age Restrictions.
You represent and warrant that You are either older than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able, competent, and legally permitted to enter into the terms, obligations, affirmations, representations, indemnities, and warranties set forth in these Terms and to abide by and comply with these Terms. You further represent and warrant that You are over the age of 13, as the Service is not intended for children under the age of 13. If You are under the age of 13, then do not use the Service.
1.4. Acceptance of Modifications by Use.
2. The Service
2.1. Scope of Service.
The Service provided by VirtualKEY is an online exchange for the management of access and exchange of access or Access Codes. VirtualKEY provides You with the means to manage listings of Keys, Electronic Keys or Access Codes, share access rights to Keys, Electronic Keys or Access Codes with other Customers. VirtualKEY also provides services to automate communication between customers via email, text and other means of notifications.
VirtualKEY allows users who have accepted a Subscription Plan and created an account on the Service, or otherwise accepted these Terms, to utilize the Service in different ways and in different capacities, including, but not limited to:
“Users or Host,” who are direct VirtualKEY customers that own or rent out their property and manage access using VirtualKEY platform.
“End Users or Guests,” who create or receive online access to Keys, Electronic Keys or Access Codes through a VirtualKEY account.
“Enterprise Users,” who have Equipment on the Enterprise User’s own premises or premises under the Enterprise User’s control as a private network, and who may, or may not, also from time-to-time utilize the Location Users’ public network Locations, to provide access to Keys, Electronic Keys or Access Codes under the control of the Enterprise User among the Enterprise User’s own employees and other End Users;
“Service Providers,” who utilize the Service to facilitate or fulfill services or products that were sold by VirtualKEY on the site or were purchased by users outside of the site. Service providers have access to the Keys, Electronic Keys or Access Codes of customers of the Service Provider or to the Keys, Electronic Keys or Access Codes of Customers of VirtualKEY by agents, subcontractors or other End Users the Service Provider designates, in some cases on an automated basis by way of the VirtualKEY API;
And all of such users are together VirtualKEY’s “Customers,” and Customers as used herein also includes any other users of the Service not outlined here.
2.3. Customer Information.
Customers using the Service must provide certain information, including but not limited to, name, email address, mobile telephone number, and Key aliases, and have the option to provide further identifying information related to Keys, Electronic Keys or Access Codes such as addresses (collectively, "Customer Information") which is used for Your account access and to facilitate the exchange of Keys, Electronic Keys or Access Codes.
2.4. Third Party Sharing Applications, Device and Websites.
2.5. Your Right of Use.
Subject to Your compliance with these Terms, once You create an account and become a Customer, VirtualKEY hereby grants to You a personal, limited, non-exclusive, non-transferrable, and revocable license to: (i) view, download and print any information made available by VirtualKEY through the Service, including any information licensed from a third party (excluding Customer Information), (ii) view any Customer Information selectively shared with You by other Customers, solely for the intended and permitted purposes of the Service, and (iii) utilize the Service as intended to exchange or facilitate the exchange of access via Keys, Electronic Keys or Access Codes at Locations.
2.6. Limitations on Your Right of Use.
The Service is provided to You “AS IS” for Your information and for the intended and permitted uses only. Without the prior written consent of VirtualKEY, it may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose other than the use as intended through the provided functionality of the Service. VirtualKEY reserves all rights not expressly granted in and to the Service. VirtualKEY reserves the right to discontinue any aspect of the Service at any time for any reason.
3. Equipment and Electronic Keys or Access Codes
The equipment in connection to VirtualKEY is primarily a lock of any type-electronic lock, digital lock, combination lock or smart locks, but could contain electronic bridges, gateways, hubs, Wi-Fi routers, fobs, key-cards, deadbolts, door handles and hardware. You have three options to use VirtualKEY services (i) you bring your own equipment and provide required credentials to integrate the services (ii) you buy equipment from VirtualKEY and integrate the services (iii) you can lease equipment from VirtualKEY in a monthly subscription model. Under option (iii) the equipment is still owned by VirtualKEY. Under each scenario you agree to share credentials with VirtualKEY allowing VirtualKEY full rights to the equipment and the ability to administer the equipment as necessary for the Service to function.
3.2. Use of Other Equipment.
To provide our service, VirtualKEY may rely on your internet using Wi-Fi or other means. It also relies on end user smartphone to establish communication back to VirtualKEY. At any point VirtualKEY takes no responsibility of the other equipment and assumes that you are responsible to provide the required other equipment.
VirtualKEY believes the Equipment is robust, that Equipment failures are rare, and that most failures can be addressed by VirtualKEY’s customer service or original equipment manufacturers customer service. However, VirtualKEY has no immediate or direct physical control over the use of the Equipment in any of the Locations and VirtualKEY assumes no liability for Equipment failure, or any delays caused by Equipment failure or any consequential damages. The same provisions also apply to Equipment provided to Enterprise Users at their private Locations. If Equipment was purchased from any other company, distributor or retailed and it fails, VirtualKEY has no liability whatsoever. If the equipment was purchased or leased from VirtualKEY directly, VirtualKEY’s liability is limited to repairing or replacing the Equipment, at VirtualKEY’s option.
3.3. Rights to Access Keys, Electronic Keys or Access Codes.
. For the security of all Customers, VirtualKEY depends on You to provide accurate access inputs and VirtualKEY will authenticate only the access authorized by You. Once Your access is granted, You agree that Your access may be accessed only by You or Your authorized End Users according to VirtualKEY’s access protocols on the Site. VirtualKEY is not liable if you authorize multiple end users or guests or service personnel to have access at the same time.
VirtualKEY may from time to time update the Services, including without limitation, by providing bug fixes, new functionality or modifications (collectively “Updates”), and that these may occur automatically without additional notice. You hereby consent to these Updates. If you do not, please stop using the Services. We may also ask you to install Updates yourself, and you agree to do so promptly. Updates are subject to these Terms together with any additional terms that may be provided with such Update. Your continued use of the Service is your agreement to all such additional terms.
3.5. Installation of Equipment.
VirtualKEY may provide assistance in installation of the equipment but bears no liability of it malfunction or any damage or lockout that might result. By seeking assistance from VirtualKEY to install equipment, you hereby give your consent and understand that VirtualKEY is not liable for improper installation. If you do not, please use professional locksmith or other technicians to install the equipment.
3.6. Obligations as to Installation and Maintenance of Equipment.
You agree to provide, at Your expense, access to each installation location and continuing access to the Location during regular business hours while the Equipment is being installed, serviced, or removed. At each Location, You further agree to provide at Your expense, a specific installation site to meet the reasonably necessary requirements to install, service, and remove the Equipment. Without limiting the foregoing, those requirements generally require that each specific installation site be inside and weather protected, temperature controlled, lighted, free from electronic interference, have adequate reception for mobile telephone transmissions, provide constant on alternating current electrical power, and a reasonable method of mounting or attaching the Equipment. You agree to provide and pay for electricity and any other costs to provide a suitable specific installation site. VirtualKEY anticipates that ongoing Equipment maintenance requirement will be minimal. You agree to conduct such routine activities in a timely manner including, but not limited to, replacing batteries and troubleshooting Equipment failures with the guidance of our or original equipment manufacturers customer service helpline. You agree to preserve and protect VirtualKEY’s Equipment while in Your possession, and You agree to return all Equipment to VirtualKEY upon request within 15 calendar days in the same condition as received at your cost, reasonable wear and tear expected. You give consent to VirtualKEY to process your payment instrument for the full value of the lock up to $500 in an event you fail to return equipment in a timely manner.
3.7. Ownership and Control of Equipment.
VirtualKEY offers three choices as explained in 3.1 (i) (ii) and (ii). Under option (i) and (ii) you own the equipment. The following subsection only pertains to option (iii) where Unlesss otherwise specified in a Subscription Plan, or other written agreement between You and VirtualKEY, You agree that all Equipment delivered into Your possession is owned by and continues to be owned by VirtualKEY during the term of its possession and operation by You, and that it must be maintained by You or returned by You to VirtualKEY, as requested by VirtualKEY, and in accordance with these Terms. You shall be deemed to have accepted all of the terms herein, and the Equipment shall be owned by VirtualKEY. You agree to return all Equipment to VirtualKEY upon request within 15 calendar days in the same condition as received at your cost, reasonable wear and tear expected. You give consent to VirtualKEY to process your payment instrument for the full value of the lock up to $500 in an event you fail to return equipment in a timely manner.
4. General Use of the Service and the Equipment
4.1. Permitted Uses.
You may only use the Service and the Equipment for lawful purposes. You agree to use the Service and the Equipment only in a manner consistent with any and all applicable laws, regulations, and VirtualKEY’s policies and procedures. VirtualKEY reserves the right to investigate and take action against any Customer who, in VirtualKEY’s sole discretion, violates this provision. Such action may include, without limitation, removing Customer Information from the Service, blocking the violating device from accessing the Service, and terminating the account of any violator.
4.2. Prohibited Uses.
Without limiting § 4.1, You expressly agree that You will not (i) use the Service or the Equipment for sending or storing any unlawful substance or material, to gain unlawful access, in furtherance of any crime, or for fraudulent purposes; (ii) use the Service to infringe upon any third party’s privacy rights, intellectual property rights, contract rights, or any other rights of any person, or to defame or to slander any person; (iii) collect or harvest any personally identifiable information, from the Service, nor use the communication systems provided by the Service (e.g., comments, content posting, or email) for any commercial solicitation purposes; (iv) solicit, for commercial purposes, any Customers of the Service; (v) use the Service for the purposes of obtaining Confidential Information or product information for the development of a similar or competing product; (vi) reverse engineer the Service or the Equipment; (vii) use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or (viii) interfere with, or attempt to interfere with, the Service or the networks or services connected to the Service, whether through the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the same to occur. The Service and the software embedded within the Service may include security components that permit digital materials to be protected and use of the Service is subject to usage rules set by VirtualKEY and/or other content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. This Section 4.2 will survive any termination of these Terms.
4.3. Free Trial Limitation.
VirtualKEY may, from time-to-time and for limited times, at VirtualKEY’s election, offer promotional free trials of the Service. These promotions are intended to give You an opportunity to sample the Service within a reasonable period of time. Your free trial as specified by VirtualKEY, VirtualKEY may send You a notification requesting that You input Your billing information and subscribe as specified by VirtualKEY. If You do not subscribe we ask you to return the smartlock or any other equipment provided back to VirtualKEY. You will be responsible for return shipping and customs cost, as applicable. Failure to return the lock or other equipment within 15 calendar days from termination of service, VirtualKEY reserves the right to charge you the full value of the equipment and lock, up to $500
4.4. Use of the Equipment.
You covenant and agree that You will take ordinary care in Your use of the Equipment and that You will not misuse or abuse the Equipment in any way. You are responsible for damage of the equipment, VirtualKEY reserves the right to charge you the full value of the equipment, up to $500.
4.5. Inherent Limitations.
The Service and the Equipment may be subject to limitations, delays, and other problems inherent in the use of the internet, electronic communications, and call centers, or inherent in changes, upgrades, maintenance, and servicing of the Equipment and the Service or the equipment failure or malfunction or due to unavailability of support infrastructure or service interruption by original equipment manufacturer. VirtualKEY is not responsible for any delays, delivery failures, or other problems resulting from such inherent limitations.
5. VirtualKEY Accounts, Billing and Payments
5.1. Creation of Your Account.
In order to access the Service and become a Customer, You must create a VirtualKEY account and register as a member by providing complete and accurate registration information, including: a valid email address, password, and other required information. You must notify us if Your information changes.
5.2. Responsibility for Your Account.
You are solely responsible for all activity that occurs on Your account, and You must keep Your account password and PIN secure. You must notify VirtualKEY immediately of any breach of security or unauthorized use of Your account. VirtualKEY is not liable for Your losses caused by any unauthorized use of Your account. You may be liable for the losses of VirtualKEY or others due to any unauthorized use. For the security of all Customers, You agree to follow VirtualKEY’s protocols for granting Key access which may require new Customers to setup a VirtualKEY account or to utilize an Access Codes sent to them by VirtualKEY. If You give anyone Your mobile number, PIN or other access credentials to access Your Key, You agree You have knowingly and intentionally breached Your security and VirtualKEY’s security and that You will be liable for any harm that may result from the unauthorized party’s access to Your Key or to the Service.
5.3. Fees on Your Account.
Any fees owed by You to VirtualKEY for Your use of the Service are due immediately and all payments received are non-refundable, even upon termination of Your account, whether by You or by VirtualKEY. All pricing information is published on the Site and is subject to change at the sole discretion of VirtualKEY. By continuing to use the Service after a change in pricing, You accept any new pricing. VirtualKEY reserves the right to contact You about special pricing if You maintain an exceptionally high use of the Service.
Unless otherwise stated, VirtualKEY’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes, export and import duties, and all similar taxes assessable on the Service or the Equipment by any local, state, provincial or foreign jurisdiction, if any apply (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against VirtualKEY based on VirtualKEY’s income. If VirtualKEY has a legal obligation to do so, VirtualKEY will invoice You for such Taxes, and You agree to pay Taxes as invoiced.
You hereby authorize VirtualKEY to bill Your credit card, debit card, or other payment instrument in advance and on a periodic pay per use basis in accordance with the Subscription Plan You choose until You terminate Your Subscription Plan. VirtualKEY is also authorized to charge your payment instrument for one-time purchases or upgrades in service that you purchase from time to time. You represent and warrant that You are authorized to use the credit card, debit card, or other payment instrument used in connection with Your account and that the information provided by You is current, complete, and correct. VirtualKEY uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for VirtualKEY.
Invoices for receipt of payment will be either made available in Your account or will be sent to You by email. Please log in to Your account to view and obtain invoices for the Service. It will be your responsibility to contact VirtualKEY in case you are not receiving invoices. All charges are considered valid unless You dispute them in writing within 30 days of the billing date. Adjustments will not be made for charges that are more than 30 days old.
You may have the option of being notified of account activity by text message, email, in app notifications, push notifications or other electronic notification format for certain account activity, and some notifications may be mandatory for customer service and security purposes. Message and data rates may apply and You are responsible for any such fees.
5.8.Term and Closing Your Account.
The term of Your account and any prorations for partial terms are specified in Your Subscription Plan. Once all of Your Keys, Electronic Keys or Access Codes are removed by You from the Equipment, You may request the cancellation of Your account in Your account settings at any time. VirtualKEY may, in its sole discretion and without liability to You, with or without cause, with or without prior notice, and at any time, decide to limit, suspend, deactivate, or cancel Your VirtualKEY account. In the event Your account is cancelled by VirtualKEY, You agree to return all Equipment at your cost to VirtualKEY upon request in the same condition as received, reasonable wear and tear expected. Failure to return the equipment in the same condition within 15 calendar days, VirtualKEY reserves the right to charge you the full value of the equipment, up to $500.
“Confidential Information” means any information which You may receive in the course of being a Customer or in business discussions or relations with VirtualKEY, that is technical data or know-how of VirtualKEY including, but not limited to, any confidential and proprietary trade secrets, hardware, software (source code and object code), screens, specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, Customer names and other information related to Customers, pricing policies, custom price lists, commission arrangements and financial information or other business and/or technical information and materials, in oral, demonstrative, written, electronic, graphic or machine-readable form and any analyses, compilations, studies or documents. You agree to keep strictly confidential and to not disclose or use for any purpose other than for performing Your obligations under these Terms any of VirtualKEY’s Confidential Information. This Section 6 will survive any termination of these Terms.
7. Ownership and Licensesy
7.1. VirtualKEY’s Property.
VirtualKEY (and its licensors and licensees, where applicable) is the owner of all right, title and interest, including intellectual property rights in and to the Service and the Equipment. Any suggestions, ideas, feedback, recommendations, or other information provided by You or any other party relating to the Service or the Equipment is owned by VirtualKEY. Nothing in this Agreement constitutes or should be construed as a sale of the Service or of the Equipment, or of any intellectual property rights related thereto, except to the extent expressly provided in VirtualKEY’s Subscription Plans. VirtualKEY owns the copyrights, service marks, and trademarks (“Trademarks”) displayed on the Site, the Equipment, promotional, and packaging materials, and any unauthorized use of the Trademarks is strictly prohibited. VirtualKEY reserves all rights not expressly granted herein.
7.2. Your Property.
8. VirtualKEY’s Warranty Disclaimer
THE SERVICE AND THE EQUIPMENT ARE PROVIDED TO YOU ON AN “AS-IS,” “WHERE-IS,” AND “AS AVAILABLE” BASIS. VIRTUALKEY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. IN PARTICULAR, VIRTUALKEY, ITS SUBSIDIARIES AND AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT: YOUR USE OF THE SERVICE AND THE EQUIPMENT WILL MEET YOUR REQUIREMENTS, IT IS FIT FOR ANY PARTICULAR PURPOSE, YOUR USE OF THE SERVICE AND THE EQUIPMENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, OR THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE AND THE EQUIPMENT WILL BE CORRECTED. VIRTUALKEY IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY OTHER CUSTOMERS, THIRD-PARTY SERVICE, NETWORK, SOFTWARE, OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY VIRTUALKEY.
9. VirtualKEY’s Limitation of Liability
YOU ACKNOWLEDGE THAT IF YOU OR ANOTHER END USER DELIVER YOUR KEY or ACCESS TO ANY LOCATION or USER (physically or electronically), YOU ARE INTENTIONALLY AND KNOWINGLY GIVING CONTROL AND/OR POSSESSION OF YOUR KEY TO INDIVIDUALS OR TO EQUIPMENT OPERATED AND ACCESSED BY INDIVIDUALS WHOSE BEHAVIOR AND EFFORT TO SECURE YOUR KEY CANNOT BE MONITORED OR GUARANTEED, INCLUDING BUT NOT LIMITED TO AGENTS OF VIRTUALKEY AND OTHER CUSTOMERS, AND THAT YOUR KEY COULD BE A TARGET OF THEFT AND COULD BE USED TO CAUSE HARM TO YOU, TO YOUR PROPERTY, TO A THIRD PARTY, OR TO A THIRD PARTY’S PROPERTY. BY SURRENDERING POSSESSION OF YOUR KEY AT ANY LOCATION TO USE THE SERVICE, YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL CLAIMS RELATED TO THE SERVICE OR TO THE EQUIPMENT FOR DAMAGES, PERSONAL INJURY, OR OTHER RELIEF YOU MAY HAVE AGAINST ANY PERSON OR PARTY EXCEPT THOSE AGAINST THE INDIVIDUAL PERPETRATOR TAKING SUCH ACTIONS THAT DIRECTLY CAUSE THE HARM. YOU FURTHER ACKNOWLEDGE THAT YOUR INFORMATION, INCLUDING YOUR CUSTOMER INFORMATION, MAY BE HACKED AND THAT IT IS YOUR RESPONSIBILITY TO MANAGE THE SECURITY OF YOUR ACCOUNT, PASSWORD AND PIN. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ASSUME THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICE AND THE EQUIPMENT.
YOU ACKNOWLEDGE THAT VIRTUALKEY IS NOT RESPONSIBLE FOR LOCK OUT SITUATIONS IN ANY CIRCUMSTANCES. VIRTUALKEY ASSUMES NO RESPONSIBILITY AND LIABILITY IN CASE OF EQUIPMENT MALFUNCTION THAT COULD POSSIBLY RESULT IN A LOCK OUT OR THEFT OR DAMAGE FROM THE PROPERTY.
IN NO EVENT SHALL VIRTUALKEY, OTHER CUSTOMERS, AND, IF APPLICABLE, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF OR ACCESS TO THE SERVICE OR THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM ANY (I) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICE OR THE EQUIPMENT, OR ANY CUSTOMER’S USE OR MISUSE OF THE SERVICE OR THE EQUIPMENT, INCLUDING LOCK OUT (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, TO YOU OR A THIRD PARTY, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE OR THE EQUIPMENT, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN AND/OR KEY EXCHANGES USING THE SERVICE OR THE EQUIPMENT (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE OR THE EQUIPMENT BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE OR THE EQUIPMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT VIRTUALKEY, OTHER CUSTOMERS, OR ANY OF THEM IS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF VIRTUALKEY TO YOU, AND AS APPLICABLE, YOUR AGENTS, FRANCHISEES, AFFILIATES, OR EMPLOYEES ARISING OUT OF OR RELATED TO THE SERVICE AND THE EQUIPMENT SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO $100.00 (USD). THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE JURISDICTIONS, CERTAIN LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
10. Your Indemnity
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS VIRTUALKEY AND OTHER CUSTOMERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS OR DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY'S FEES), EXCEPT AS CAUSED SOLELY BY THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, ARISING FROM: (I) YOUR FACILITATION, USE OF OR ACCESS TO THE SERVICE OR THE EQUIPMENT; (II) YOUR VIOLATION OF ANY TERM OF THESE TERMS; OR (III) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING, WITHOUT LIMITATION, ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT. THIS DEFENSE AND INDEMNIFICATION OBLIGATION SHALL SURVIVE THE TERMINATION OF THESE TERMS AND YOUR USE OF THE SERVICE AND THE EQUIPMENT.
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but are freely assignable by VirtualKEY
11.2. Dispute Resolution.
Irrespective of where you reside, in the United States or another country, you and VirtualKEY agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site, Application or Collective Content (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and VirtualKEY are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and VirtualKEY otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1--800--778--7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and VirtualKEY otherwise agree, the arbitration will be conducted in the USA. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and VirtualKEY submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. VirtualKEY will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, VirtualKEY will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).Changes. Notwithstanding the provisions of the "Modification" section above, if VirtualKEY changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated" date above or in the date of VirtualKEY's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and VirtualKEY in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
11.3. Jurisdiction, Venue and Choice of Law.
If Section 11.2 is void, voidable by You, or otherwise inapplicable, then You agree that: (i) the final step in consummating these Terms is VirtualKEY’s acceptance in Chicago, Illinois, USA, by publication on the Site; (ii) for purposes of jurisdiction and venue for the resolution of Disputes only the Service shall be deemed solely based in Chicago, Illinois, USA; (iii) the Service shall be deemed a website and service that does not give rise to personal jurisdiction over VirtualKEY, either specific or general, in jurisdictions other than Chicago, Illinois, USA; and (iv) Disputes shall be decided exclusively by a court of competent jurisdiction located in Chicago, Illinois, USA. Notwithstanding any other provision of these Terms, You agree that VirtualKEY may apply for and enforce injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. These Terms shall be construed, interpreted, governed and enforced under the internal substantive laws of the Illinois, USA, except with respect to its conflict of laws principles and conflict of laws principals generally.
VirtualKEY may publish on the Site translations of the English language version of these Terms into some of the other languages used by its Customers. Any such translations are provided to You only as a convenience. You and VirtualKEY agree that only the English language version of the Terms governs Your agreement with VirtualKEY. Any translation of these Terms into a language other than English shall be of no force or effect and shall not be considered in any Dispute.
11.5. Entire Agreement.
11.6. Survival of Terms.
If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, and these Terms shall be construed to give effect as nearly as possible to the original intent.
No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and VirtualKEY's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
11.8. Defined Terms.
Smartlock / Electronic Lock/ Digital Lock/ Combination Lock – Lock which can be opened and closed using access code or key combination or electronic signal via phone or other devices.
Confidential Information has the meaning given in § 6.0.
Customer Information has the meaning given in § 2.3.
Customers has the meaning given in § 2.2.
Disputes means any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Service or use of the Site or use of the Equipment.
End Users acting as Host has the meaning given in § 2.2.1.
End Users acting as Guest has the meaning given in § 2.2.1.
Equipment means all of the equipment used or reasonably necessary to operate the Service regardless of whether VirtualKEY owns the equipment or whether the equipment is given, sold, or leased to, or held in trust by, or otherwise possessed by, a third party, or the customer themselves including but not limited to: any type of lock, bridges, gateways, routers, home automation systems, Key fobs, Key cabinets, Key exchange consoles, automated Key exchange systems; connectors, wiring, packaging, instructional, and marketing materials; and any other physical object originally provided or made available by VirtualKEY or approved or accepted by VirtualKEY as necessary or useful in connection with providing the Service. Enterprise Users has the meaning given in § 2.2.3.
Key means any physical device, virtual code, access code, digital access or combination of devices, necessary to gain access to a controlled space, regardless of whether the form of the device is mechanical, electronically scanable, signal generating, or any other such device which will physically fit within the Equipment as intended by VirtualKEY and which does not interfere with the operation of the Equipment. Key can be, but is not limited to be in the form of Physical or Numerical or Electronic.
VirtualKEY means the VirtualKEY operating company (name and business address available at (https://www.virtualkey.co) with the right to distribute the Service to the Location where You virtually, electronically or physically exchange a Key, facilitate the exchange of a Key or, if You have not exchanged or facilitated the exchange of a Key, the country where Your primary residence is located.
VirtualKEY’s Jurisdictions means the countries in which one of the VirtualKEY operating companies is organized or incorporated and in which it maintains a place of business, which include: United States of America.
Location means a site or a property with Equipment for facilitating Key exchanges utilizing the Service.
Service means the online management of Key access and features for property management made possible by VirtualKEY and offered to You under one or more of VirtualKEY’s Subscription Plans for access to and use of the Site and the Equipment. Service also includes options to lease an equipment. VirtualKEY also acts as a reseller of equipment through its site. Service also includes services that are sold thru the site but are fulfilled by service providers.
Service Providers has the meaning given in § 2.2.4.
Site means VirtualKEY’s website found at http://www.VirtualKEY.co or VirtualKEY Mobile App found in Google store at https://play.google.com/store/apps/details?id=com.virtualkey.app or Apple store at https://itunes.apple.com/us/app/virtualkey/id1107287284?mt=8 Subscription Plan means a plan displayed on the Site publicly or within Your account (or if there is a separate written agreement signed by VirtualKEY and You, then including the separate written agreement) which defines the cost and parameters of use of the Service and/or the Equipment which apply to You.
Taxes has the meaning given in § 5.4.
Terms means these Terms of Service and as the same may be amended or modified as herein provided.
Third Party Sharing Applications has the meaning given in § 2.4.
Trademarks has the meaning given in § 7.1.
You or Your means any person, party, unincorporated association, and any legal entity entering into these Terms, other than VirtualKEY, together with their agents, officers, employees, personal representatives, successors, and permitted assigns, and any other person, party, unincorporated association, and any legal entity controlled or controllable by them or any of them.