Mobile Application Terms of Use

Effective Date: December 1, 2021

Welcome to the AER App (the “App”) operated by Follicle, Inc. (“Follicle,” “we,” “us,” and “our”). Your use of the App is subject to terms and conditions of use described below (hereinafter “Terms of Use”) and Follicle, Inc.’s Privacy Policy, available here aerdryer.com/policies.  The App and any information, material, or content made available on or through the App are subject to these Terms of Use. So, please read these Terms of Use carefully before accessing or downloading the App.  By checking “I Agree” upon use of the App, you acknowledge that you have read and reviewed the Terms of Use and Privacy Policy and agree to be bound by their terms.  

Follicle designs and sells hair care products and related accessories (“Products”), the App, which is an iOS and Android application used for maximizing the performance of the Products, and related subscriptions, software, and websites (collectively with the Products and the App, the “Services”).   These Terms of Use apply to any person who accesses or uses the Services (“users”, “you”, or “your”). 

If you do not agree to the Terms of Use, do not access or use the App.

  1. Your use of the App.

You are granted a limited, non-exclusive, revocable right to access and use the App solely for your personal use in connection with Follicle’s Services. This right does not include the right to, and you shall not: modify, reproduce, or resell any part of the App’s content; use any robot, spider, data miner, or other automated or semi-automated means to extract or gather data from the App; access the App for purposes of creating a competing product or service; or otherwise use the App or any of its content in any manner other than the manner in which it is intended to be used, unless you first obtain Follicle’s express written consent.  You may not use the App, or its content, for any purpose prohibited or restricted by law.  Except for the limited right expressly granted to you in these Terms of Use, Follicle and its licensors expressly reserve all other rights and licenses.

  1. Changes to the Terms of Use or App.

Follicle reserves the right to change, modify, or discontinue the App or any portion of the App, including any and all content, at any time without notice to you.  Follicle reserves the right to modify or amend these Terms of Use at any time.  All changes will be effective immediately upon their posting on the App.  If we make a material change to these Terms of Use, the Privacy Policy or the App, we will endeavor to notify you of that change.  By accessing the App after any changes to these Terms of Use, you agree to all such changes.

  1. ELIGIBILITY; ACCOUNT REQUIREMENTS.

By creating an account or using our App, you confirm that you accept these Terms of Use. You also confirm that:

  • You have reached the age of 18; or
  • You are 13 or older but younger than 18 (“Minor”), and you represent that you have reviewed these Terms of Use with your parent or legal guardian before using the App and that you and your parent or guardian understand and consent to these Terms of Use. If you are a parent or guardian of a Minor who is using the Services, you accept and agree to: (i) supervise the Minor’s use of the App; (ii) assume all risks associated with the Minor’s use of the App, (iii) assume any liability resulting from the Minor’s use of the App; (iv) ensure the accuracy and truthfulness of all information submitted by you or the Minor; and (v) assume responsibility and are bound by these Terms of Use for the Minor’s access and use of the App.

You are responsible for all activity that occurs in association with your use of the App and App account. Follicle is not liable for any loss or damages caused by your failure to maintain the confidentiality of your App or App account credentials. Please contact us if you discover or suspect any security breach related to the App or your account.

You may only connect to the App using a Product that is manufactured, distributed, or sold by Follicle itself or through its authorized dealers, retailers, or resellers. You may not connect to the App with (a) any Product or device that is not manufactured, distributed, or sold by Follicle itself or through its authorized dealers, retailers, or resellers (such as a knock off or counterfeit version of our Product); (b) any Product or device that otherwise intends to resemble or purports to be a Follicle Product; or (c) any unauthorized application or third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the App.

Full use of the App is dependent upon your use of a mobile device and, in some cases, Internet access. The maintenance and security of such equipment may influence the performance of the App and it is your responsibility to ensure the equipment’s functionality. You are responsible for all cellular, data, and Internet access charges. Please check with your cell phone carrier and Internet provider for information on possible data usage charges.

  1. FAULT, SERVICE, AND MAINTENANCE NOTIFICATIONS.

We may send you fault, service and/or maintenance notifications about your connected Follicle Product via the App (for example when a part needs replacing), though we make no assurances regarding the timing or delivery of any such notifications. The default setting in the App is that these notifications are turned on, and we recommend that you do not change this as, if you do, you may not receive important information about your connected Follicle Product. If you want to disable notifications you can do so via the App ‘settings’, although if you do this we will not be responsible for any consequence(s) of you doing so (for example, if your connected Follicle Product no longer functions correctly).

  1. UPDATES AND UPGRADES.

From time to time, we may need to deploy or provide patches, updates, upgrades, additional content or other modifications to the App and/ or software on your connected Follicle Product (for example for maintenance, enhancements, to add or remove features, resolve software bugs or address security concerns).

These updates and upgrades may result in the App and/or your connected Follicle Product being temporarily unavailable. In certain circumstances, we may need to suspend, withdraw or disable the App and/or software for longer periods while we deploy these updates and upgrades. We will always try and give you notice of this, but it may not be possible in all cases. The default setting in the App is that these updates and upgrades will automatically be deployed. You may turn this setting off via the App ‘settings’, although we would always recommend that you have the latest version of the App and software installed. If you do not install any update or upgrade then all of the functionality and features of the App and/or your connected Follicle Product may not be available to you. In certain circumstances, we may also reasonably consider that an upgrade or update is mandatory, for example when a connected Follicle Product is first connected to ensure the latest version of the App and/or software is installed, or where it is essential for security or operational reasons.

Where this is the case, we will automatically push the upgrade or update to the App and/or software regardless of your App update settings.

We will take reasonable measures to minimize the impact of any updates and upgrades on your use of the App and/or your connected Follicle Product, and where possible give you advance notice of any updates and upgrades which may impact your use of them. Whenever the App and/or software is unavailable, this will affect your use of your connected Follicle Product, and not all of the functionality and features of the connected Follicle Product may be available to you.

  1. Termination/Suspension.

You agree that Follicle may issue a warning, temporarily suspend, indefinitely suspend, or terminate your right to use or access all or any part of the App, including any account hereon, without notice, for any reason in Follicle’s sole discretion, including, without limitation, violation of these Terms of Use or Follicle’s belief that your use or access would violate any applicable law or would be harmful to the interests of, or potentially cause financial loss or legal liability to, Follicle, another user, or any third party. 

  1. Privacy.

When you use the App, you are expressly agreeing and consenting to the collection and use of your personal information and other data as set forth in (and more fully described in) Follicle’s Privacy Policy. For more detail about what information we collect, please visit the Privacy Policy here.

  1. Trademarks.

Follicle, or third parties from whom Follicle has permission, own the trademarks and service marks that are used on the App. All rights are reserved by Follicle and said third parties, and no implied rights are granted to you or any third parties.  These and other graphics, logos, service marks, trademarks, and trade dress of Follicle and its licensors may not be used without prior written consent of Follicle or its licensor, as the case may be.  Without limiting the foregoing, no Follicle trademark or trade dress may be used in connection with any product or service that is not Follicle’s, in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits Follicle.

  1. Copyright and Other Proprietary Rights.

All proprietary content and materials on the App including, without limitation, the App’s layout, organization, and design, and any graphics, text, icons, audio, video, and the like are protected by copyrights, trademarks, service marks, trade secrets, and other proprietary rights and laws.  You agree to comply with all applicable laws by not copying or using this proprietary content, except as allowed by these Terms of Use or by written consent of the owner of the proprietary rights.

Follicle shall own all right, title and interest in and to any feedback, submissions, ideas (including gift ideas, requests, or suggestions), concepts, know-how, or techniques (collectively, “Feedback) that you submit to the App or otherwise choose to share with Follicle through other communication channels for any purpose (including without limitation commercialization) and without compensation to you, subject only to Follicle’s Privacy Policy.  You hereby irrevocably assign to Follicle all rights that you may have in the Feedback and agree to execute and deliver such additional documents evidencing the assignment and transfer of rights in the Feedback as Follicle may reasonably request from time to time.

  1. Digital Millennium Copyright Act.

If you have reason to believe that material on the App infringes your copyright, please send a notice by mail or email to the contact information listed below requesting that the infringing material be removed.  

  1. CHILDREN’S PRIVACY.

Individuals under the age of 13 are not permitted to use the App. 

We do not knowingly collect or solicit personal information from children under the age of 13 or knowingly allow such persons to register for an account or use the App. If we learn that we have collected any personal information from a child under 13, we will take reasonable steps to delete such information. Parents or guardians who believe that their child has submitted personal information to us and would like to have it deleted should contact us at support@aerdryer.com with the subject line: Children’s Privacy Deletion Request.

  1. Third-Party WEBSITES.

The App may contain links to other unrelated websites on the Internet. Follicle is not responsible for the content, accuracy, copyright compliance, decency standards, or other materials on such websites.  These Terms of Use do not apply to such unrelated websites and you should review the privacy policy and terms of use for any website that you visit.  Follicle is not liable for any losses or damages incurred as the result of your dealings with such third parties.

  1. Disclaimer of Warranties.

THE APP AND ALL CONTENT MADE AVAILABLE THROUGH THE APP ARE PROVIDED BY FOLLICLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. FOLLICLE DOES NOT WARRANT THAT THE APP, ITS SERVERS, OR E-MAIL OR OTHER COMMUNICATIONS SENT FROM THE APP ARE FREE FROM VIRUSES OR OTHER HARMFUL EFFECTS.  Neither Follicle, its affiliates, any third party supplier, nor their respective officers, directors, employees, or agents, are responsible or liable to you under any theory of liability or indemnity in connection with or related to your access or use of the App or any of its content.

  1. LIMITATION OF LIABILITY.

FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, FOLLICLE WILL NOT BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, RESULTING FROM YOUR USE OF THE APP OR ANY OF ITS CONTENT. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE APP, INCLUDING WITHOUT LIMITATION, LOSS OF DATA OR DAMAGE TO YOUR DEVICE OR OTHER EQUIPMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMISSIBLE BY LAW, FOLLICLE’S AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE COST OF REPLACEMENT OF THE FOLLICLE PRODUCT OR SERVICE AT ISSUE.

SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES.  ACCORDINGLY, SOME OF THE EXCLUSIONS AND LIMITATIONS ABOVE MAY NOT APPLY.

You agree to indemnify, defend, and hold harmless Follicle, its owners, officers, representatives, directors, employees, consultants, third party suppliers, and agents from any and all losses, expenses, claims, liabilities, damages, and costs (including, without limitation, attorneys’ fees) arising from or related to (a) your use of the App; (b) your use of any material, information, or data downloaded or otherwise obtained from the App; (c) your violation of these Terms of Use; or (d) your infringement of any intellectual property or other right of Follicle or any other person or entity.

  1. Interpretation and Disputes.

(a)        YOU AND FOLLICLE, INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR USE OR PURCHASE OF SERVICES, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

(b)       The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 17. (The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

Except as provided in Section 16(d), below, the arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.

We will be responsible for paying any individual consumer’s arbitration/arbitrator fees.  If you prevail on any claim that affords the prevailing party attorneys' fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law.

(c)        You may elect to pursue your claim in small-claims court in Wisconsin rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.

(d)       You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR FOLLICLE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal shall not consolidate more than one person's claims, and shall not otherwise preside over any form of a representative or class proceeding.  The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction identified in Section 15, above. 

(e)        If any provision of this Section 16 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced; provided, that in the event Section 16(d) is found to be unenforceable, all of Section 16 shall be deemed null and void and of no effect.

  1. Entire Agreement.

These Terms of Use, the Follicle Privacy Policy, and Terms of Conditions for the Sale of Follicle, Inc.’s Products and Services (“Terms of Sale”) constitute the entire agreement between you and Follicle relating to the App and any content and materials obtained through the App, and supersede all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.  Any waiver of any provision of these Terms of Use will be effective only if in writing and signed by Follicle.  These Terms of Use will inure to the benefit of Follicle’s successors and assigns.

  1. Contact Us.

If you have questions, complaints or claims about the App or these Terms of Use, please contact us using one of the options below:

  • Via telephone:            1-877-741-1747
  • Via mail:                     Follicle, Inc., 241 N. Broadway, Suite 502, Milwaukee, WI 53202
  • Via email:                   support@aerdryer.com

 

  1. APPLE-SPECIFIC TERMS

The following Apple-specific terms will only apply if you have downloaded the App from the Apple App Store, and are in addition to the other provisions of these Terms of Use (and if there is any conflict or inconsistency between the other terms of these Terms of Use and these Apple-specific terms, these Apple-specific terms will apply).

  • These Terms of Use are agreed between you and us only, not with Apple. We are solely responsible for the App and its contents.
  • The license we grant you in the ‘Intellectual Property Rights’ section above is limited to Apple-branded products only, and remains non-transferable (except that the App may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing).
  • Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
  • Apple has no warranty obligation whatsoever with respect to the App, and any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty (if any) will be our sole responsibility.
  • We, and not Apple, are responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection privacy, or similar legislation, including in connection with (if any) the App’s use of the HealthKit and HomeKit frameworks.
  • In the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
  • You promise that: (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  • You must comply with applicable third party terms of agreement when using the App.
  • Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use (which means that they can rely on the terms of the Terms of Use that benefit them, even though they have not entered into them). Upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary.

 

  1. GOOGLE PLAY SPECIFIC TERMS

The following Google Play-specific terms will only apply if you have downloaded the App from the Google Play Store, and are in addition to the other provisions of these Terms of Use (and if there is any conflict or inconsistency between the other terms of these Terms of Use and these Google Play-specific terms, these Google Play-specific terms will apply).

The license we grant you in the ‘Intellectual Property Rights’ section above may, if applicable, include users in a family group, with a family manager and family members whose accounts are joined together for the purpose of creating a family group. Family groups on Google Play will be subject to reasonable limits designed to prevent abuse of family-sharing features. Users in a family group may purchase a single copy of the App (except in-app productions and subscriptions, which cannot be shared) and share it with other family members in their family group.