Terms of Service

Your Acceptance

This is an agreement between Andium IncTM, a Delaware corporation (“Andium”), the owner and operator of www.andium.com (the “Andium Site”), the Andium software, including Mesh (collectively, including all content provided by Andium through MeshMe and the Andium Site, the “Andium Service”, or the “Service”), and you (“you” or “You”), a user of the Service. BY USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE TO THESE TERMS OF SERVICE, AND ANDIUM’S PRIVACY POLICY, WHICH CAN BE FOUND AT HTTP://ANDIUM.COM/PRIVACY AND WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you choose to not agree with any of these terms, you may not use the Service.

Andium Service

These Terms of Service apply to all users of the Andium Service. Information provided by our users through the Andium Service may contain links to third party websites that are not owned or controlled by Andium. Andium has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Andium will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly acknowledge and agree that Andium shall not be responsible for any damages, claims or other liability arising from or related to your use of any third-party website.

Andium Access

  1. Andium may make available to you various payment processing methods to facilitate the purchase of products from the Andium Service. You must abide by any relevant terms and conditions or other legal agreement, whether with Andium or a third party, that governs your use of a given payment processing method. Andium may add or remove payment processing methods at its sole discretion and without notice to you. You agree to pay for any products that you order and that Andium may charge your credit card or other form of payment that you indicate for any products ordered, along with any additional amounts (including any taxes). You agree that you are solely responsible for all fees associated with purchases you make from Andium. You are responsible for any taxes, and must pay Andium for products without any reduction for taxes. If Andium is obligated to collect or pay taxes, the taxes will be invoiced to you, unless you provide Andium with a valid tax exemption certificate authorized by the appropriate taxing authority. If you are required by law to withhold any taxes from your payments to Andium, you must provide Andium with an official tax receipt or other appropriate documentation to support such payments. Taxes means any duties, customs fees, or taxes (other than Andium’s income tax) associated with the sale of products, including any related penalties or interest.
  2. To use the Andium Service, you will need a device that meets the system and compatibility requirements for the relevant product, which may change from time to time, working Internet access, and compatible software. Your ability to use the Andium Service and the performance of the Andium Service may be affected by these factors. Such system requirements are your responsibility. You may need to install updates to the Andium Service or related Andium software that we introduce from time to time to use the Andium Service and to access or download products. Products originating from Andium may communicate with Andium servers from time to time to check for available updates to the products and to the functionality of the Andium Service, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, “Updates”). By using the Andium Service and installing these products, you agree to such automatically requested and received Updates.
  3. You agree not to use or launch any automated system, including without limitation, “robots”, “spiders”, “offline readers”, etc. or “load testers” such as wget, apache bench, mswebstress, httpload, blitz, Xcode Automator, Android Monkey, etc., that accesses the Andium Service in a manner that sends more request messages to the Andium servers in a given period of time than a human can reasonably produce in the same period by using a Andium application, and you are forbidden from ripping the content unless specifically allowed. Notwithstanding the foregoing, Andium grants the operators of public search engines permission to use spiders to copy materials from the website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Andium reserves the right to revoke these exceptions either generally or in specific cases. While we don’t disallow the use of sniffers such as Ethereal, tcpdump or HTTPWatch in general, we do disallow any efforts to reverse-engineer our system, our protocols, or explore outside the boundaries of the normal requests made by Andium clients. We disallow using request modification tools such as fiddler or whisker, or the like or any other such tools activities that are meant to explore or harm, penetrate or test the site. You must secure our permission before you measure, test, health check or otherwise monitor any network equipment, servers or assets hosted on our domain or stored by Andium on another party’s domain. You agree not to collect or harvest any personally identifiable information, including phone number, from the Service, nor to use the communication systems provided by the Service for any commercial solicitation or spam purposes. You agree not to spam, or solicit for commercial purposes, any users of the Service.
  4. In order to access certain aspects of the Andium Service, you may be required to provide information about yourself such as your name, address, and billing details. Andium’s privacy policies explain how we treat your personal data and protect your privacy when using the Andium Service. You agree that any such information you provide to Andium will always be accurate, correct and up to date.
  5. You understand that when using the Andium Service you will be exposed to Submissions from a variety of sources, and that Andium is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Submissions, and that such Submissions are not the responsibility of Andium. You further understand and acknowledge that you may be exposed to Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Andium with respect thereto, and agree to indemnify and hold Andium, its officers, directors, employees, agents, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Andium Service.

Intellectual Property Rights

  1. The design of the Andium Service along with Andium created text, scripts, graphics, interactive features and the like, except Submissions (as defined below), and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Andium, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Service is provided to you AS IS for your information and personal use only. Andium reserves all rights not expressly granted in and to the Service. You agree to not engage in the use, copying, or distribution of any of the Service other than expressly permitted herein, including any use, copying, or distribution of Status Submissions of third parties obtained through the Service for any commercial purposes.
  2. Following payment of the applicable fees for a product, you will have the nonexclusive right, for as long as Andium and the applicable copyright holder have rights to provide you that product, to download or stream, in each case, solely as expressly permitted by Andium via the Andium Service user interface and subject to the restrictions set forth in these Terms and associated policies, copies of the applicable product to your devices, and to view, use, and display the product on your devices or as otherwise authorized by Andium as part of the Andium Service. You may not sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense or transfer or assign your rights to products to any third party without authorization, including with regard to any downloads of products that you may obtain through the Andium Service. Use of any tool or feature provided as an authorized part of the Andium Service shall not violate this provision so long as you use the tool as specifically permitted and only in the exact manner specified and enabled by Andium. All rights, title and interest in the Andium Service and products not expressly granted to you in these Terms are reserved by Andium and its licensors.

User Submissions

  1. The Andium Service allows Andium users to publish and sell applications to other users of the Andium Service (collectively, the “Submissions”). You acknowledge that Andium will, solely on your behalf, and not on Andium’s behalf, display and make Submissions available for download and purchase by users. If you are agreeing to be bound by these Terms on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to these Terms. If you do not have the requisite authority, you may not accept the Terms or use the Andium Service on behalf of your employer or other entity.
  2. You shall be solely responsible for your own Submissions and the consequences of transmitting or publishing them. Because Andium is only acting as a repository of data, Submissions do not necessarily represent the views or opinions of Andium, and Andium makes no guarantees as to the validity, accuracy or legal status of any Submission. In connection with Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Andium to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Submissions to enable inclusion and use of the Submissions in the manner contemplated by the Service and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Submissions in the manner contemplated by the Service and these Terms of Service. To be clear: you retain all of your ownership rights in your Submissions, but you have to have the rights in the first place. However, by submitting the Submissions to Andium, you hereby grant Andium a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Submissions in connection with the Andium Service and Andium’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Andium Service (and derivative works thereof) in any media formats and through any media channels.
  3. You agree that if you use the Andium Service to distribute Submissions, you will protect the privacy and legal rights of users. If the users provide you with, or your product accesses or uses, user names, passwords, or other login information or personal information, you must make the users aware that the information will be available to your product, and you must provide legally adequate privacy notice and protection for those users. Further, your product may only use that information for the limited purposes for which the user has given you permission to do so. If your Product stores personal or sensitive information provided by users, it must do so securely and only for as long as it is needed. But if the user has opted into a separate agreement with you that allows you or your product to store or use personal or sensitive information directly related to your product (not including other products or applications) then the terms of that separate agreement will govern your use of such information.
  4. In connection with Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party 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 Andium all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Andium or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) impersonate another person; (v) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vi) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vii) attempt to gain unauthorized access to the Service or its related systems or networks.
  5. Andium does not endorse any Submission or any opinion, recommendation, or advice expressed therein, and Andium expressly disclaims any and all liability in connection with Submissions. Andium does not permit copyright infringing activities and infringement of intellectual property rights via its Service, and Andium will remove all content and Submissions if properly notified that such content or Submission infringes on another’s intellectual property rights. To file a copyright infringement notification, please send a written communication that includes substantially the following (see Section 512(c)(3) of the Digital Millennium Copyright Act): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material, including the mobile phone number of the Andium user allegedly infringing the copyrighted work; (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Such takedown notices may be emailed to info@meshchip.com. Andium reserves the right to remove content and Submissions without prior notice. Andium may also terminate a user’s access to the Service, if they are determined to be a repeat infringer, or for any or no reason. A repeat infringer is a User who has been notified of infringing activity more than once and/or has had a Submission removed from the Service more than twice. Andium also reserves the right to decide whether content or a Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law. Andium may remove such Submissions and/or terminate a User’s access for submitting such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
  6. In order to charge a fee for your products, you must have a valid payment account under a separate agreement with a payment processor. If you have an existing payment account with a payment processor before signing up for the Andium Service, then the terms of that agreement will apply except in the event of a conflict with these Terms (in which case these Terms shall apply). Products are displayed to users on your behalf, at prices you establish in your sole discretion. Andium may include applicable taxes in the price charged to users on the Andium Service. You may set the price for your products in the currencies permitted by the payment processor. You are the merchant of record for products you sell through the Andium Service. The price you set for products will determine the amount of payment you will receive. Where either Andium or the payment processor are required by applicable (local) legislation to withhold any taxes (“Withholding Taxes&lrquo;) on payments made or received by anyone of them, Andium will also deduct an amount equal to such Withholding Taxes from the sales price. For the avoidance of doubt, Withholding Taxes include, but are not limited to, withholding tax obligations on cross-border payments or imposed by telecommunications taxes. The remainder (sales price less the amount equal to any Withholding Taxes) will be remitted to you. You are responsible for providing any applicable tax residency certificates to Andium. If Andium or its service provider does not receive such documentation, Andium will withhold at the domestic withholding tax rate. You are responsible for determining if a product is taxable and the applicable tax rate for the payment processor to collect for each taxing jurisdiction where products are sold. You are responsible for remitting taxes to the appropriate taxing authority. Where Andium or the payment processor is required by applicable (local) legislation to determine, apply and pay the applicable tax rate, Andium or the payment processor will be responsible for applying and collecting and remitting the taxes to the appropriate taxing authority. You may also choose to distribute products for free. The payment processor must process all fees you receive for any version of a product distributed via the Andium Service.

Warranty Disclaimer

YOU AGREE THAT YOUR USE OF THE ANDIUM SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, ANDIUM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. ANDIUM MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SERVICE’S CONTENT AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE THROUGH THE ACTIONS OF ANY THIRD PARTY, AND/ OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE ANDIUM SERVICE. ANDIUM DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE ANDIUM SERVICE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY USER SUBMISSION OR OTHER ADVERTISING, AND ANDIUM WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. AND AGAIN, USE THIS JUST FOR FUN.

Limitation of Liability

IN NO EVENT SHALL ANDIUM, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, (V) ANY ERRORS 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 ANDIUM CLIENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND/OR (VI) THE DISCLOSURE OF INFORMATION PURSUANT TO THESE TERMS OF SERVICE OR PRIVACY POLICY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

YOU SPECIFICALLY ACKNOWLEDGE THAT ANDIUM SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by Andium from its facilities in the United States of America. Andium makes no representations that the Andium Service is appropriate or available for use in other locations. Those who access or use the Andium Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

Indemnity

You agree to defend, indemnify and hold harmless Andium, its 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) arising from: (i) your use of and access to the Andium Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of your Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Andium Service.

Ability to Accept Terms of Service

You affirm that you are either more than 16 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are at least 16 years old as the Andium Service is not intended for children under 16. If you are under 16 years of age, you are not permitted to use the Andium Service. You further represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist-supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties. Andium is the developer of the Service, with an address at 26 W 61st St, Suite 404 New York, NY 10023.

Assignment

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Andium without restriction.

General

You agree that: (i) the Andium Service shall be deemed solely based in Delaware; (ii) the Andium Service shall be deemed a passive server that does not give rise to personal jurisdiction over Andium, either specific or general, in jurisdictions other than Delaware; and (iii) that you agree to be subject to the jurisdiction of Delaware in the event of any legal dispute. These Terms of Service shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. Any claim or dispute between you and Andium that arises in whole or in part from the Andium Service shall be decided exclusively by a court of competent jurisdiction located in Delaware. These Terms of Service, together with the Privacy Policy at www.meshchip.com/privacy and any other legal notices published by Andium, including, but not limited to an end user license agreement, shall constitute the entire agreement between you and Andium concerning the Andium Service. If any provision of these Terms of Service 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 of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Andium’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Andium reserves the right to amend or modify these Terms of Service at any time, and it is your responsibility to review these Terms of Service for any changes. If you do not agree to the revised Terms, your only recourse is to discontinue the use of the Andium Service. Your continued use of the Andium Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND ANDIUM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE ANDIUM SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

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