Terms of Service
Last updated: 12-01-2016
Ahtovation, Inc. dba Eco Automation, its affiliates, and Licensors (collectively, “Eco”, “us”, “we”, “our”) provides: a user account that may be accessed via a software that may be downloaded to your smartphone or tablet to access services (“Mobile App”), a website or webapp (“Web App”), a cloud-based system that provides additional enhancements and features in conjunction with using any of our products or services (“Cloud”), subscription services, including services that can be accessed using the Web Apps or Mobile App (“Subscription Services”), all for use in conjunction with Eco hardware and/or third-party products (“Products”) and in any other way that Eco provides. The term (“Service” or “Services”) means the Mobile Apps, Web Apps, Cloud and Subscription Services which include but are not limited to, self-monitored mobile-based alarms, surveillance, electric monitoring, solar monitoring, energy conservation techniques, and automation rule engine.
PLEASE READ THE FOLLOWING CONDITIONS AND TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES, AS THEY ARE A BINDING AGREEMENT BETWEEN YOU AND ECO AND ULTIMATELY GOVERN YOUR ACCESS TO USE THE SERVICES. THESE TERMS ARE AUTOMATICALLY ACCEPTED BY DOWNLOADING, ACCESSING, OR USING THE SERVICES, YOU OR ANY ENTITY THAT YOU REPRESENT AGREE TO BE BOUND BY ALL OF THESE TERMS, AND THESE TERMS WILL REMAIN IN EFFECT WHILE YOU USE THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND CAPACITY TO AGREE TO THESE TERMS ON YOUR BEHALF OR THE ENTITY THAT YOU ARE REPRESENTING. THESE TERMS LIMIT ECO’S LIABILITY AND THEY REQUIRE YOU TO USE ARBITRATION TO RESOLVE ANY TYPE OF DISPUTE, RATHER THAN BY CLASS ACTIONS, TRIAL BY JURY OR ANY SIMILAR LEGAL PROCEEDINGS. AS DESCRIBED IN THESE TERMS, YOU AGREE TO ALLOW FOR AUTOMATIC FIRMWARE AND/OR SOFTWARE UPDATES TO THE SERVICES AND THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DISAGREE WITH ANY OF THE TERMS CONTAINED HEREIN, THEN YOU MAY NOT ACCESS THE SERVICES AND YOU SHOULD DISCONNECT YOUR PRODUCTS FROM THE SERVICE.
THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES AS TO THE RESULTS YOU WILL OBTAIN FROM THE USE OF THE SERVICES. ADDITIONALLY, THE SERVICES ARE NOT INTENDED TO BE USED FOR LIFE CRITICAL AND/OR LIFE SAFETY SERVICES AND IN NO WAY CAN WE BE HELD LIABLE FOR THE SERVICES NOT PERFORMING AS EXPECTED.
1. Overview, Participation Benefits, Term and Termination.
Participation Benefits. Depending on the type of Subscription Services you are enrolled in, Eco offers many benefits to its customers and end users through the use of the Products and Services offered by Eco. By allowing multiple Products or third-party products, devices and sensors to be connected to the Services, Eco can provide energy savings alerts and triggers that can globally control these Products and other devices connected to the Services (“Energy Conservation and Optimization”). As part of these Energy Conservation and Optimization services, Eco may periodically monitor, manage and control the Products in a fashion that will reduce the overall yearly energy consumption of those products individually and as a part of the greater global system features. Additionally, the Services can use global system features to control and adjust the settings of Products connected to the Services during a utility demand response event “(Demand Response Event”). If you are subscribed to one of our Subscription Services that includes either of these Participation benefits, you agree, acknowledge and grant Eco the permissions to make changes to the Products connected to the Services by curtailing the usage, shifting heating and cooling runtimes, restricting the operation of or modify the settings of any authorized Product connected to your Account. Your comfort and settings will be maintained as much as possible and the amount of changes the Services will make to your products is adjustable by you in the settings section of the Mobile App. In order to participate in one or both of these Participation Benefits, you must choose an appropriate Subscription Service, live in the service area of a utility that is offering these services and agree to allow Eco to enroll you in such utility demand response program if they exist in your area. By agreeing to participate in the Demand Response Event program, you agree to allow Eco to share data with the utility company and to modify the settings of the products connected to your Account. If you do not live in an area that participates in the Demand response Events, you may still take advantage of the savings offered by Eco’s Energy Conservation and Optimization services.
Term and Termination. The Terms will remain in full effect as long as you use or access the Services, or until otherwise terminated in accordance with any provision of the Terms. If you fail to comply with the Terms or any other rule or guideline produced by Eco, we may immediately suspend and/or terminate your access to any or all portions of the Services for any reason. Any such suspension and/or termination can be made with or without prior notice. If your sell or otherwise transfer a Product to another user, your right to use the Service as it relates to the Product automatically terminates.
Your Account. In order to use the Services, you are required to sign up for a user account (“Account”) and provide a valid email address, provide your legal name, select a secure password and choose a default location for your Services to be attached to. You represent and warrant that (i) all the information you submit is accurate, truthful and complete; (ii) you will continuously to maintain the accuracy of such Account information; (iii) your use of the Service does not violate and U.S. or other applicable law or regulation; and (iv) that you are of legal age to form a binding contract, or if not, you have received your parent’s or guardian’s permission to use the Services and your parent or guardian has agreed to these Terms on your behalf. If you are agreeing to these Terms on behalf of another entity, you represent and warrant that you have the right and capacity to agree to and bind said entity to these Terms. Additionally, you may not transfer your account to anyone without our prior written permission. If you provide any information that is untrue, inaccurate, not current or incomplete, or if Eco has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services.
Owner. The person or entity that creates the original Account is the Owner of the account (“Owner”), services and products related to the Account. As the Owner of the Account, you may grant access to the Services that control and monitor your Account and other Products to other Accounts (“Authorized Users”). In order to use the Services related to your Account, Authorized Users must additionally agree to these Terms and are separately held responsible to ensure that the terms contained herein are upheld. If the Authorized User is a child under the age of thirteen (“Authorized Minor Child”), you agree that to accept these Terms on their behalf and you represent and warrant that you have the right and capacity to agree to and bind the Authorized Minor User to these Terms. Additionally, you agree that even though Authorized Users are responsible for the actions they take while using your Account and Services, you agree to be additionally responsible for any and all actions they take on your behalf. To limit the amount of access an Authorized User has to your Account and Services, you can limit the access they have by appropriately selecting their access levels when you create an invite to that Authorized User.
3. Access to Services
Access and Limited Use License. Subject to the Terms contained herein, Eco grants you a personal, non-exclusive, non-transferable, non-sublicensable right to view, access and use the Services offered by Eco your personal use, and subject to the condition that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or access to the Services. The access and use of the Services is solely for the purpose of controlling and monitoring the Products that you directly own or are authorized to access and use. You may not access the Services in any manner that could damage, disrupt, overburden or otherwise interfere with any other users’ ability to access and use the Services.
Required Connectivity. Some portions of the Services require a consistent data connection between your home and our servers and a Wi-Fi network in your home that is positioned to properly communicate with all of the areas of your home. You must provide this connection and network, at your sole expense and responsibility. We are not responsible for the availability of this connection or network, or liable for any consequences that may result from the unavailability of such connection. Some portions of the Services may require a connection to your electric, gas, water, or other utility meter. This connection may be wired or wireless, local or through a remote API, between you and the utility, the utility and us, or in some case both. Eco is in no way responsible for the availability of these connections or liable for any consequences that may result from the unavailability of such connections. If provided by the utility, you agree to allow us access to your billing and usage information from the utilities for the purpose of our providing that information to you through the Services.
Automatic System Features. Eco may from time to time develop updates, upgrades, patches, bug fixes and other modifications (“Updates”) to improve the performance of our Products and Services. To keep our Products and Services performing at the highest levels of standards, these Updates may be automatically downloaded and installed without notice and without additional consent required. BY USING OUR PRODUCTS AND SERVICES YOU CONSENT TO AUTOMATIC SOFTWARE UPDATES OF THE RELATED PRODUCTS AND SERVICES.
No Obligation. Unless explicitly acknowledged or committed to as part of a feature of the Services, Eco has no obligation to, (i) maintain or archive your User Submissions, Device Data or Utility Data for any specified period of time, (ii) guarantee access to User Submissions, Device Data or Utility Data, and (iii) has no liability for User Submissions, Device Data or Utility Data submitted to the Services that become unavailable through the Services.
Open Source. Certain items of independent, third party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL. In the event of any inconsistencies or conflicting provisions between the provisions of the Open Source Licenses and the provisions of these Terms, the provisions of the Open Source Licenses shall prevail.
Your Phones Security. The Service stores and processes personal data that you have provided to us so that we can better serve you and help automatically manage your energy usage. It’s your responsibility to keep your phone and access to the app secure. We therefore recommend that you use an access code to access your phone and that you do not jailbreak or root your phone, which is the process of removing software restrictions and limitations imposed by the official operating system of your device. It could make your phone vulnerable to malware, viruses, malicious programs, compromise your phone’s security features and it could mean that the Service won’t work properly or at all.
Children’s Privacy. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at firstname.lastname@example.org.
Security. The Services of Eco are secure and were designed to require authentication to be able to access and use the Services. Upon registering, you will choose a username and secure password to to authenticate you Account with the Services and other third-party partners, utilities and device manufactures, your (“Credentials”). You are solely responsible for (i) maintaining the confidentiality of your Credentials, (ii) not allowing other persons to use your Credentials, and (iii) any and all damages or losses that may occur as a result of activities that occur under your Credentials. You agree to immediately notify Eco in writing if you believe there has been any unauthorized use of your Credentials to access the Services. Eco cares about the security of your personal information, and takes every means possible to insure the integrity of your information is uncompromised, however, Eco cannot guarantee that unauthorized third parties can’t through means not controllable to Eco, gain access to your Credentials, overcome our security technologies and gain access to some or all of your personal information. You agree that you are providing your personal information at your own risk and that Eco is in no way liable if your Credentials are used or our Services are somehow compromised exposing your personal information.
Changes to Service. Eco reserves the right to change, modify, suspend, disrupt or discontinue the Services, or any part of the Services, at any time without notice and you agree that Eco will be in no way liable to you or any third-party for such modification, suspension, disruption or discontinuation of Services.
4. Agreed Usage and Limitations of Eco Services
Intended Use of Eco Services. Eco strives for the Services offered by Eco and our Licensors to be highly reliable and readily available when needed, but for many reasons beyond Eco’s control, including internet or Wi-Fi connection speeds or intermittency, service provider outages, local radio interference, building material interference and other interruptions or failures, the Services are not intended to be operational 100% of the time. By using the Products and/or Services you agree that you understand these limitations and that Eco and our Licensors, are in no way responsible for any damages caused by the lack of or delay of the Services.
Personal, Non-Commercial Use. You will only use the Services for your personal, non-commercial use, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. Eco will not be responsible for your using the Services in a way that breaks the law.
No Critical Uses of Services. You agree and acknowledge that the Products and Services are intended for informational purposes, and for your convenience, and that no matter how you are actually using the Products and Services, they are in no way intended, or certified, to be used for emergency response needs. Unless otherwise agreed to in our Subscription Services, you understand that the Products and Services are not being monitored by a third-party emergency response system, and Eco will not be able to dispatch emergency personnel to your home or office in the event of an actual emergency.
Reliability of Notifications. You agree and acknowledge that the Services, are not intended to be operational 100% of the time and therefor Eco cannot guarantee that you will receive a notification immediately following any event, nor can Eco guarantee that you will receive said notification at all. You agree that you will not rely on the Services or Notifications for any Life Threatening or Saving purposes.
Temporary or Involuntary Suspension. You agree and acknowledge that your Services may be temporarily or involuntarily suspended without notice for many reasons, including but not limited to, system maintenance, failures, security threats, provider outages, or other circumstances. You agree and acknowledge that in the event of suspension, you will not be entitled to a credit or refund for the time that the Services were unavailable.
Energy Savings and Other Benefits. Unless otherwise stated, Eco does not guarantee or make any promise of any amount of energy that the Services can save you and Eco offers no promise of monetary benefit from the use of our Products and Services. The actual amount of energy your home or office can save is a factor of many other options beyond the control of Eco’s Services and include, number of occupants, preferred thermostat set points, efficiency and functionality of appliance and many other factors.
IP Rights, Laws and Statutes. You agree and acknowledge that you will not use the Services in any manner that may (i) infringe upon the intellectual property right, privacy rights or other rights of any third-party, (ii) violate any state, federal or global law, statute or other regulation, (iii) compromise the security of your account or the security of any other account by attempting to gain unauthorized access to it, and (iv) attempt to decompile, reverse engineer or otherwise attempt to obtain the source code of the Services.
Data Protection and Privacy Laws. Certain data and privacy protection laws may exist where you reside that require you to understand your responsibilities as they pertain to your use of Eco’s Products and Services. You agree and acknowledge that you are solely responsible for making sure that you comply with these laws and any other local or applicable law as it pertains to you sharing User Content via the Services, and that in now way is Eco responsible for damages and/or losses as it relates to your improper use of the Services or User Content.
5. Limitations of Eco Services Due to Third Parties
The Services may contain links or API connections to third party products and/or services that are not owned or controlled by Eco. Eco has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party app, products, website or services. You further acknowledge and agree that Eco shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such links, API connections or services. We strongly advise you to read the terms and conditions and privacy policies of any third party websites or services that you visit to fully understand all of your collective rights and responsibilities.
Third Party Services Used by Eco. You acknowledge that Eco uses third party service providers to enhance the overall features and Services offered by Eco and you agree that in no way is Eco responsible for the content, performance or any other aspect of the third-party services and Eco cannot be held liable or responsible for damages caused by Eco’s use of these services.
Third Party Interactions. Your interactions with third party organizations found on or through the Services, including payment and delivery of goods or services under any transaction you enter into with a third party, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations. You should investigate these third parties as you feel necessary or appropriate before proceeding with any transaction with any of them. You agree that Eco shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings with any third parties.
6. Ownership and Intellectual Property
Eco Property. You acknowledge that Eco owns and retains the sole and exclusive intellectual property rights, including but not limited to patents, trademarks, tradenames, copyrights and trade secrets, in the Product and Services (“Licensed Products”). Eco and the Licensed Products are protected by applicable intellectual property and other laws. Your use of the Licensed Products does not grant you or any third party rights, title or interest to the intellectual property of the Licensed Products. Without limiting the preceding sentences, Eco and its affiliates, partners and licensors reserve all rights not specifically granted under these Terms but available under intellectual property law or other laws.
User Suggestions. Our end-users are the front line in helping make the Eco Services a better and more user friendly Service that meets your needs and helps make your life more comfortable. Eco does not actively solicit request for new ideas, but if you wish to submit any information for consideration of changes or improvements to the Services, you hereby grant Eco a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate the suggestions into the Services.
Reverse Engineering. You shall not reverse engineer or decompile the Eco Services or Mobile App or attempt to acquire the intellectual property of Eco in any manner, including, without limitation, through translating, disassembling, decompiling, decrypting or deconstructing, software service, or hardware or any other means possible.
You agree to defend, indemnify and hold Eco, our licensors, your utility and their respective subsidiaries, affiliates, strategic partners, distributors, suppliers, and their respective shareholders, members, directors, officers, employees and agents harmless from any losses, expenses, cost, damages, liabilities, claims or demands, including costs and attorneys’ fees (“Indemnified Parties”), made by any third party due to or arising out of (i) your use and each Authorized User of the Products or Services, (ii) you or your Authorized User breach of these Terms, (iii) you or your Authorized User violates any law or the rights of any third party, (iv) the unauthorized or unlawful use of the Services by any other person or entity using your Credentials, and (v) any third-party actions related to your use of the Services, whether authorized or unauthorized under these Terms.
8. Warranty Disclaimers
THE WARRANTY FOR THE PRODUCT AND PRODUCT SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE EULA, RESPECTIVELY.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. NEITHER ECO, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE INFORMATION CONTAINED THEREIN, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, SERVICE OR MERCHANDISE PROVIDED THROUGH THE SERVICES. ADDITIONALLY, THERE ARE NO WARRANTIES MADE AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICES.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
ECO AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NEST OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY ECO YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INACCURACY, INTERRUPTION, DEFECT, DELAY IN TRANSMISSION, COMMUNICATION LINE FAILURE OR UNDER ANY OTHER CAUSE OF ACTION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL THE INDEMNIFIED PARTIES BE IN ANY WAY LIABLE TO THE OWNER OR ANY AUTHORISED USER FOR ANY DISRUPTION, INTERRUPTION OR ANY OTHER DAMAGES FOR DISRUPTION IN THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF SERVICES, LOSS OF PROFITS OR ANY OTHER KIND OF LOSSES WHATSOEVER, EVEN IF THE INDEMNIFIED KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE INDEMNIFIED BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THIS LIMITATION OF LIABILITY SHALL ADDITONALLY APPLY TO PREVENT THE RECOVERY OF ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, AND PUNITIVE DAMAGES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES, FROM INABILITY TO USE THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF SERVICES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES). UNDER NO CIRCUMSTANCES SHALL THE INDEMNIFIED PARTIES , BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, RIOTS, CIVIL DISTURBANCES, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF COURTS, NON-PERFORMANCE OF THIRD PARTIES. . IF, NOTWITHSTANDING THESE LIMITATIONS OF LIABILITY, THE INDEMNIFIED PARTIES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE LIABLE TO YOU IN ANY WAY, IN NO EVENT SHALL THE COLLECTIVE LIABILITY OF THE INDEMNIFIED PARTIES EXCEED THE FEES YOU HAVE PAID TO ECO OR ITS LICENSORS RELATING TO THE SERVICES DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING YOUR CLAIM. YOU AND THE INDEMNIFIED PARTIES AGREE THAT THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND THE INDEMNIFIED PARTIES. YOU ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, THE INDEMNIFIED PARTIES WOULD NOT PROVIDE THE SERVICES TO YOU. NOTHING IN THESE TERMS AND WITHIN THIS “LIMITATION OF LIABILITY” CLAUSE SHALL ATTEMPT TO EXCLUDE LIABILITY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
10. Fees and Payment
Some of the Services provided by Eco and our Licensors consume a certain amount of computer processing cycles, data transfer and data storage resources (“Computer Resources”). Depending on the number of devices and other Products that an Account has attached to it, the Computer Resources used on a monthly basis can be signification. Certain Services offered by Eco and its Licensors may be provided for a fee. You shall pay all applicable fees in connection with the Services selected by you in accordance with the terms and conditions pertaining to the Subscription Services.
11. Dispute Resolution and Arbitration.
PLEASE READ THIS SECTION CAREFULLY AND FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS.
Arbitration. Eco and you agree to arbitrate all disputes arising from or relating to the subject matter of these Terms in Orange County, California, in English, in accordance with the Consumer Arbitration Rules (“AAA Rules”) of American Arbitration Association (“AAA”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of AAA arbitrators in accordance with the Arbitration Rules and Procedures of AAA. You agree through your use of the Services; you are explicitly waiving your right to a trial by jury or to participate in a class action.
Notice or Disputes. If either party to these Terms wishes to pursue arbitration of an unresolved dispute, that party must provide notice to the other party in writing. Notices “to” Eco shale be sent to: Eco Automation, 4000 MacArthur Blvd., East Tower Suite 1025, Newport Beach, CA 92660. Notices “from” Eco will be sent to the current mailing address or email address associated with your Account.
Arbitration procedures. The arbitration will be governed by the AAA Rules, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online atorg, by calling the AAA at 800.778.7879, or by writing to the Notice Address. (You may obtain information that is designed for non-lawyers, about the arbitration process at att.com/arbitration-information.) All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator is bound by the terms of this Agreement. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
Cost of Arbitration. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award.
No Class Arbitration. You and Eco agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless we both agree, not arbitrator or judge may consolidate more than one person’s claim or otherwise preside over any form of a representative or class processing.
30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions of these Terms, you must notify Eco in writing within the first thirty (30) days of agreeing to and first using these Terms (unless otherwise provided for by law). Your notice should be mailed to the Notices address listed above in section 11(b). If you wish to not be bound by arbitration and the class-action waiver please provide your name, registered email address and mailing address in the letter that you send and state that you do not wish to resolve disputes by arbitration. The notification that your send will only affect these Terms and shall not affect any other terms between you and Eco.
12. Digital Millennium Copyright Act
If you’re a copyright owner who believes any Content being used in connection with the Services of these Terms and infringes on your rights you may submit a notification to Eco pursuant to the digital Millennium Copyright Act.
Changes to the Terms. You agree that Eco has the right to make changes to these Terms at any time. We will provide notice of any changes to these terms on this page and If a revision is made, we will try to provide at least 30 days’ notice prior to the new terms taking effect. What constitutes a material change will be determined at our sole discretion. You should ensure that you reviewed and agreed with our most recent Terms when you continue to use the Services. Your continued use of the Eco Services following an effective change date posted constitutes your agreement to the changed Terms. You agree that these standards for notice of amendments to these Terms are reasonable and acceptable to you.
Governing Law. These Terms shall be governed and construed in accordance with the laws of United States, without regard to its conflict of law provisions. Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.
Entire Agreement/Severability. The Terms constitute the entire agreement between you and Eco regarding the use of the Services. Any failure by Eco to enforce any right or provision of these Terms shall not constitute as a waiver of such right or provision. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
Assignment. These Terms and all associated rights or obligations, may not be assigned or otherwise transferred by you without Eco’s prior written consent. These Terms may be assigned by Eco without restriction. There Terms are binding upon any permitted assignee.
Notifications. Eco may provide notifications to you as required by law or for other marketing or other purposes via email, mobile notifications or hard copy to your address on file.
Copyright/Trademark Information. Copyright 2014-2016, Ahtovation, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Services are the property of Eco or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Eco or such respective holders. Eco reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for errors that may appear in this or in related documents.