This is a set of terms and conditions to be published and used for mobile device testing labs--community spaces that provide mobile devices for testing software and code. Like all docs I post on Docracy, this is not a one-size-fits-all document. Nothing replaces the good advice of an attorney.
DISCLAIMER: I am not an attorney; I am a J.D. with admission to the New York bar pending. By viewing and/or downloading this form, you understand that I a... show morem not providing you legal advice nor soliciting representation on behalf of myself or anyone I'm associated with.
Terms & Conditions
Device Testing Lab (DTL)
Thank you for your interest in DTL! DTL is an at-cost service provided to you and other members of the development community that allows you to test your software creations on various mobile devices.
As our lab’s traction and reach grow, we hope to increase our offerings, both in hardware and services. These terms and conditions (together, the “Terms” or the “Agreement”) are between you and [COMPANY] (“DTL,” “we,” or “us”). These Terms apply to the services currently offered by DTL, as well as services that may be offered in the future (together, the “Services”). Please read these Terms carefully if you are interested in renting, lending, donating, or otherwise supporting DTL.
The Services are available only to, and may only be used by, individuals and entities able to form legally binding contracts under applicable law. The Services offered hereunder are not available to children (persons under the age of 18) or to anyone whose use of the Services has been suspended or revoked. If you are under the age of 18, you can use the Services only in conjunction with, and under the supervision of, a parent or guardian. If you do not qualify, please do not use the Services. If you are acting on behalf of any entity or organization, you warrant and represent that you have the authority to bind the entity to these Terms.
YOUR USE OF THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AND INDICATES YOUR WILLINGNESS TO BE BOUND BY THESE TERMS.
Services & Devices
The Services we offer include, but are not limited to, renting or lending mobile devices (“Devices”) to you that we own, or otherwise have a license to lend, for the purposes of testing software and codeon them. Devices can be used either at our offices or off-site. In using the Services, you may be able to review and modify Content (as defined below), upload and download files to the Devices, pay for reservations, sign up to use Devices, provide your credit card information for payment, and communicate and establish relationships with others. We reserve the right to change, suspend and discontinue any aspect of the Services at any time including, but not limited to, the nature of the Services offered, Devices available, price for reservations, hours of availability, and software needed for access or use. Notwithstanding anything herein to the contrary, DTL reserves the right to permit or restrict any user’s access to the Services in its sole and absolute discretion.
We currently own the following Devices and provide them for rental and pick-up from our offices:
- [DEVICES LIST #1]
We also gladly take new and gently used mobile devices as donationsand peer-to-peer rentals.The following Devices are available for rental on a peer-to-peer basis:
- [DEVICES LIST #2]
The Devices--when given to you—and the Services we provide may contain information and content, including but not limited to, operating systems, text, statistics, data, product information, time stamps, software applications, graphics, photographs, illustrations, calendars, designs, games, video and audio files, programs and code, in addition to other content, including user-generated content, that can be accessed through any software applications (collectively, "DTL Content"), that is owned or licensed by DTL or others.
Furthermore, you may provide to us, and upload, modify, program, test, run, and perform functions with respect to, content, including without limitation, statistics, data, software applications, graphics, photographs, illustrations, calendars, designs, games, video and audio files, programs and code (collectively, “User Content”), that you have created or have the license to. “Content” for purposes of this agreement means DTL Content together with User Content.
DTL is not responsible for inaccurate information provided through the Services and makes no representations as to the accuracy or completeness of DTL Content, including without limitation the availability or effectiveness of any product. DTL does not assume any liability for any loss that may result from the reliance by any person upon any DTL Content.
Payment and Reservations
Although we stress and love open innovation, we, unfortunately, cannot provide our Services for free. If you’re interested in renting a device from us, we charge $5 per hour. Other payment rates may apply for off-s
Typically, reservations are required one to two weeks in advance of renting a Device. To reserve a Device, send an email to [CONTACT EMAIL]to schedule a device and a time slot. You can reserve Devices in advance by giving us your credit card number. If you provide your credit card number, you consent to our charging you a $20 non-refundable reservation fee that will be applied to your rental.
Registration and Security
In connection with your use of the Services, you may establish or otherwise receive DTL user IDs, passwords and other security codes ("User Codes") that you may need in order to access and use certain portions of the Services.
You agree to provide true, accurate, current and complete information about yourself as prompted by any registration forms ("Registration Information") and maintain and promptly update the Registration Information to keep it true, accurate, current and complete. You hereby authorize DTL, directly or through third parties, to make any inquiries we consider necessary to validate your Registration Information. DTL reserves the right to vigorously pursue legal actions against all persons who misrepresent personal information in any transactions or are otherwise untruthful about their identity, and to suspend or cancel accounts registered with inaccurate or incomplete information. Notwithstanding the foregoing, you acknowledge that DTL cannot guarantee the accuracy of any information submitted by any user, nor any identity information about any user.
You are responsible for maintaining the confidentiality of your User Codes. You agree that you will be fully responsible for all activities that occur utilizing your User Codes, and that DTL has no duty to inquire as to the authority or propriety of instructions provided via your User Codes, or to otherwise verify the identity of anyone using your User Codes. You agree that DTL shall not be responsible for damages or losses resulting from any breach of security caused by loss or your failure to maintain the confidentiality of your User Codes. If you permit access to your User Codes by third parties, then you agree to defend, indemnify and hold DTL harmless against any liability, losses, damages or costs and expenses (including attorneys' fees) arising out of, or resulting from, such access and related use of the Services. You also agree to immediately notify DTL if you become aware of any loss or theft of your User Codes or any unauthorized use of your User Codes. DTL reserves the right to block your User Codes for any reason.
For your protection, DTL may require the use of encryption technologies for certain types of communications conducted through the Services. While we may provide those technologies and might use other reasonable precautions to protect confidential information and provide suitable security, we do not guarantee or warrant that information transmitted through the internet or any data network is secure, or that such transmissions will be free from delay, interruption, interception or error.
If you have, or if we reasonably believe that you have, violated any restrictions on your use of the Devices contained in this Agreement, we may use any measures legally available to us to prevent such restricted use, including, but not limited to, terminating any pending transactions you have entered with DTL or suspending your access to the Services. The following conduct with respect to the Devices is prohibited:
- Modifying, opening, decompiling, or disassembling any hardware of the Devices or the Devices themselves.
- Returning Devices in a condition that is different from their condition when they were given to you. This means you must “wipe” the Devices of all User Content.
- Introducing any viruses, bugs, malware, spyware, or any other malicious code or programming onto the Devices.
- Renting a Device for the purpose of testing its durability or ability to withstand punishment.
- Downloading or uploading unlawful or inappropriate User Content on the Devices.
- Failing to return a Device at or before the time you are scheduled to return them.
- With respect to a Device you’ve rented, signing any contract or committing to any service plan that activates the rented Device’s cellular voice functionalities.
- Uploading User Content on the Devices that is false, inaccurate or misleading or improperly assumes or claims the identity, characteristics or qualifications of another person.
- Downloading User Content (whether from the Internet or locally) onto a Device that imposes an unreasonable or disproportionately large load on any infrastructure associated with the Device.
- Testing User Content or otherwise promoting User Content that is fraudulent or involves the distribution or sale of illegal, counterfeit, or stolen items;
- Testing User Content that is libelous or invasive of privacy or publicity rights or any other third party rights.
Other Terms That May Apply
The Terms set out herein constitute the entire agreement between you and DTL. But your use of the Devices may implicate other agreements, including, without limitation, any terms and conditions that the hardware manufacturer or designer may impose on your use of the Devices. To the extent your conduct with respect to the Devices constitutes a violation of any third-party agreements that apply to your use of the Devices, you hereby waive any and all claims against DTL that may arise out of such violations.
Ownership and Use of Content
DTL shall not (a) be subject to any obligations of confidentiality regarding User Content, except information you provide to process payment for reservations; or (b) be obligated to compensate you or any third party for any User Content.
You hereby waive all rights to any and all claims against DTL for alleged or actual infringements of any intellectual property rights, proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with the Content. By submitting User Content on or through the Devices or Services, you represent to the Company that you are such User Content’s rightful owner or that you have first obtained permission from the rightful owner to upload it to the Devices. You acknowledge thatDTL has detrimentally relied upon this representation. Accordingly, you further agree to defend, hold harmless and indemnify DTL, its parents, affiliates and subsidiaries, together with their respective employees, agents, officers, directors, shareholders and licensees, from and against any and all threats and claims of alleged or actual infringements of any intellectual property rights, proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution raised any third party against DTL in connection with your User Content.
Furthermore, you agree to release the DTL from any and all liability and obligations whatsoever in connection with, or arising from, your use of the Services and the use by DTL of User Content provided by you. If at any time you are not happy with any aspect of the Services or you object to any DTL Content, your sole remedy is to cease using them.
Indemnification & Limitation of Liability
You agree to defend, indemnify and hold DTL harmless from any and all losses, claims, damages, or costs (including reasonable attorneys’ fees) that arise from your conduct with respect to any Device while such Device is in your possession.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW , DTL SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTIES CLAIMING THROUGH OR UNDER YOU UNDER ANY CIRCUMSTANCES FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOSSES, ARISING OUT OF YOUR USE OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO INTERRUPTIONS OR DELAYS IN TRANSMISSION, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF DTL HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGE OR LOSS. IF YOU ARE DISSATISFIED WITH THE SERVICES, DO NOT AGREE WITH ANY PART OF THIS AGREEMENT OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST DTL RELATED TO THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES AND IMMEDIATELY RETURN ANY DEVICES TO DTL. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND TO THE EXTENT APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE AND AGREE THAT IN THE ABSENCE OF THIS LIMITATION OF LIABILITY THESE TERMS WOULD BE MATERIALLY DIFFERENT OR YOU WOULD NOT BE GRANTED ACCESS TO THEOUR SERVICES.
THE SERVICES, DEVICS AND DTL CONTENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY USER FOR ANY ACTS OF FRAUD, THEFT, MISAPPROPRIATION, TAMPERING, HACKING, INTERCEPTION, PIRACY, MISUSE, MISREPRESENTATION, DISSEMINATION, OR OTHER ILLEGAL OR UNAUTHORIZED ACTIVITIES OF THIRD PARTIES. YOU UNDERSTAND AND EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES, THE DEVICES AND THE DTL CONTENT IS AT YOUR SOLE RISK, THAT ANY AND ALL CONTENT UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE DEVICES OR SERVICES ARE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU, YOUR PROPERTY OR ANY THIRD PARTY OR THEIR PROPERTY ARISING FROM USE OF THE SERVICES, THE DEVICES OR THE CONTENT. DTL SHALL NOT BE RESPONSIBLE FOR SHIPPING OR FULFILLMENT DELAYS, THE CANCELLATION OF ANY TRANSACTION OR THE UNAVAILABILITY OF ANY PRODUCT.
TO THE EXTENT THAT THE APPLICABLE LAW DOES NOT PERMIT THE DISCLAIMER OF WARRANTIES, THE PRODUCTS, SERVICES AND DTL CONTENT ARE WARRANTED ONLY TO THE MINIMUM AMOUNT LEGALLY REQUIRED.
Term & Termination
These Terms shall commence when you first visit [DTL SITE] make a reservation, or view any Content or use any feature incorporated in the Services, and shall apply to all of your subsequent visits and uses, provided that nothing herein shall prohibit us from refusing or otherwise restricting access to any user for any reason at any time, in our sole discretion. DTL may, with or without cause, immediately terminate these Terms without notice, and deny you access to any Services in its sole discretion. Without limiting the foregoing, DTL has the right to immediately terminate any passwords or accounts created by you in the event that you breach these Terms or engage in conduct that DTL considers unacceptable, including but not limited to abuse of the Services, entering incorrect or inaccurate information, or any use of the Services that interferes with DTL or any user. If your use of the Services is terminated, you will no longer be authorized to access any DTL Services. Without limiting any other rights of DTL hereunder, you understand and acknowledge that DTL, in its sole discretion, may pursue legal and equitable relief against you if you breach or threaten to breach these Terms.
The Content, the Devices, the Services and these Terms are subject to change and updating by DTL and our affiliates, licensees, partners, agents and representatives at any time without prior notice. The changes may include superseding terms and conditions. YOU SHOULD REVIEW THIS AGREEMENT FROM TIME TO TIME TO BE AWARE OF ANY CHANGES THAT ARE MADE. Your continuing use of any DTL Services constitutes your acceptance of any change or update, all of which shall become controlling when posted.
Applicable Law; Jurisdiction
The Services along with all products and features are designed for personal and legal uses only. It is your responsibility to comply with all national, state and local laws, rules and ordinances when using the Services. The laws of the State of New York will govern these Terms, without regard to conflicts of law principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement. Any and all claims and controversies arising out of and related to these Terms shall be settled in the courts of competent jurisdiction in New York, NY. Any such claim or controversy shall be adjudicated on an individual basis and shall not be consolidated with a claim of any other party.
These Terms set forth the entire understanding and agreement between you and DTL with respect to the subject matter hereof. If any provision or provisions hereof shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be in any way affected thereby. Except as described herein, you may not assign these Terms without our explicit consent. You are responsible for fees associated with gaining access to the Services, including the fees associated with any equipment necessary to test the User Content you wish to test.
If you have questions, please email us at [CONTACT INFO].