These Terms of Service (this "Agreement") constitutes a legally binding contract between Home On, Inc., a Delaware corporation with an address of 1345 Kotenberg Avenue, San Jose, California 95125 ("Company," "we," "us," "our" "Home On") and you with respect to your use of our services, APIs, websites, or mobile applications (collectively, the "Service"). More information about the Service may be found at http://www.homeon.com.
It is important that you carefully read and understand the terms and conditions of this Agreement. BY USING THE SERVICE, OR BY INDICATING YOUR ASSENT TO THIS AGREEMENT BY REGISTERING WITH HOME ON AND CREATING AN ACCOUNT OR ANY SIMILAR MECHANISM, YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. If you access or use the Service on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to this Agreement and that it is fully binding on them. In such case, the term "you" will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Service. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and Home On have against each other are resolved (see Section 9 (Limitation of Liability), Section 13 (Dispute Resolution), and Section 14 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 13(D). Unless you opt-out: (A) you will only be permitted to pursue claims against Home On on an individual basis, not as part of any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Changes to this Agreement
We reserve the right to, at any time, with or without cause:
We will notify you of any material changes to the terms and conditions of this Agreement or to any service or other feature of the Service. You must accept such changes in order to continue to use and access the Service. If you do not accept such changes your use and/or access to the Service will be terminated.
2. Use of the Service
Before using the Service, you may need to register with Home On and create an account. We reserve the right to decline to provide the Service to any person for any or no reason. If and when you register with or provide information to Home On, you agree to: (a) provide accurate, current, and complete information as prompted (including your e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Service. By providing Home On with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including any notices required by law.
You may register for or log-in to your account via a third-party network, such as Facebook or Google+. If you do so, you hereby authorize Home On to pre-populate the registration and other relevant information fields of your Service account and/or to use such third-party network credentials to log you into the Service. If you connect your Service account to third-party network, you agree to comply with the terms and conditions and policies applicable to such network.
You are solely responsible for the activity that occurs on your account. You must keep your account credentials (including username and password) secure at all times. You may not share your account with any third parties without Home On's prior written consent unless such third party has separately entered an agreement with Home On permitting it to access your account. You must notify Home On immediately of any breach or suspected breach of security or unauthorized use of your account. Home On will not be liable for any losses caused by any unauthorized use of your account.
You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
3. Rules Governing Your Use of the Service
You may not use the Service, or assist or encourage any other party, to engage in any of the following prohibited activities:
Improper use of the Service may result in termination of your access to and use of the Service, and/or civil or criminal liabilities. You agree to use the Service in accordance with all applicable laws.
4. Intellectual Property
A. Your Rights. Subject to the terms and conditions of this Agreement (including any restrictions on any applicable authorization or order form), you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. Home On reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel, or otherwise.
B. Company Rights.
C. Proprietary Rights. The Service is owned and operated by Home On, and the Service (and any intellectual property and other rights relating thereto) is and will remain the property of Home On and its licensors and suppliers. The Service is protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. The Service may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by authorized representatives of Home On or, if so indicated in writing by Home On, its licensors or suppliers. Use of the Service for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, logos, and service marks displayed on the Service (collectively, the "Company Trademarks") are the registered and unregistered trademarks of Home On, Home On's licensors and suppliers, and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Company Trademark(s) without the express written permission of Home On, Home On's licensors or suppliers, or the third-party owner of any such Company Trademark. Subject to the rights granted to Home On in this Agreement, as between you and Home On, you retain all right, title, and interest in and to your User Content.
D. User Content. You are solely responsible for any User Content that you submit, post, or display on or via the service. You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of your User Content on or through the Service does not and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Service. You agree that Home On is not responsible for, and does not endorse, User Content posted within the Service. Home On does not have any obligation to prescreen, monitor, edit, or remove any User Content. If your User Content violates this Agreement, you may bear legal responsibility for that User Content. As between you and Home On, any User Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with Home On is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not place Home On in a position that is any different from the position held by members of the general public, including with regard to your User Content. None of your User Content will be subject to any obligation of confidence on the part of Home On, and Home On will not be liable for any use or disclosure of any User Content you provide.
E. Reporting Copyright and Other IP Violations. The Digital Millennium Copyright Act (the '#34;DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Home On also reviews claims of trademark infringement. If you believe in good faith that materials hosted by Home On infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work or trademark claimed to have been infringed (or, if multiple copyrighted works or trademarks located on the Service are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow Home On to locate the material on the Service; (d) the name, address, telephone number, and e-mail address (if available) of the complaining party; (e) 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 or trademark owner, its agent, or the law; and (f) 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. Please be advised that Home On will not respond to complaints that do not meet these requirements. If Home On determines that the materials alleged to infringe your copyright or trademark rights do not require removal, Home On will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information: (a) your name, address, and telephone number; (b) the source of the content that was removed; (c) a statement under penalty of perjury that you have a good-faith belief that the content was removed in error; (d) a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located; or, if your address is outside of the United States, for any judicial district in which Home On may be found, and that you will accept service of process from the person who provided the original complaint; and (e) a physical or electronic signature (for example, typing your full name).
Notices and counter-notices with respect to the Service must meet the then-current statutory requirements imposed by the DMCA (see http://copyright.gov/title17/92appb.html) and should be sent to the agent identified below. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
Agent to Receive Notices of Claimed Infringement:
1345 Kotenberg Ave
5. Third-Party Links and Information
Additionally, if you submit information to us related to your use of a third party service, including your login information and third party service account information, without limitation to anything in this Agreement, such information will be "User Content," as defined in Section 4.
6. Payment Processing
By submitting your payment information for the purposes of enrolling your payment information with your Service account you authorize us and our participating merchants and service providers, including payment networks and processors, to obtain, provide and use transaction information related to your purchases at participating service providers to display your payment information, coordinate your payments and to otherwise facilitate and make the Service available to you.
7. No Use by Children Under 13
You hereby affirm that you are over the age of thirteen (13), as the Service is not intended for children under 13. If you are under 13 years of age, then you may not use the Service. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
8. Term & Termination
This Agreement is effective from the date on which you first access the Service or submit any User Content to Home On, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Home On may immediately terminate this Agreement, and/or your access to and use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. Home On may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Service shall immediately cease and you shall cease all use of the Service. Upon termination or expiration of this Agreement for any reason, Sections 1, 2, 3, 4(B), 4(C), 4(D), 4(E), and 5–17 shall survive.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate Home On to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.
THE SERVICE IS PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE, AND YOUR RELIANCE THEREON.
10. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER HOME ON NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. HOME ON'S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). NEITHER HOME ON NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OR OTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS PROVIDED OR POSTED ON THE SERVICE BY THIRD PARTIES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You (and also any third party for whom you operate an account on the Service) agree to fully indemnify, defend (at Home On's request), and hold Home On, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants, and other representatives (collectively, the "Company Parties") harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees), and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement; (b) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Service or other websites to which the Service is linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Service; (f) any service or product offered by you in connection with or related to your use of the Service; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
12. Jurisdictional Issues
Home On makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas, or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.
13. Notice for California Users
Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
14. Dispute Resolution
A. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to Home On's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Home On will pay the additional cost. You and Home On hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if Home On is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
B. Class-Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
C. Exception—Litigation of Small-Claims-Court Claims. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
D. Thirty-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: 1345 Kotenberg Ave, San Jose CA 95125. The notice must be sent within 30 days of registering to use the Service; otherwise, you shall be bound to arbitrate disputes in accordance with this Agreement. If you opt out of these arbitration provisions, Home On also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Home On may terminate your use of the Service.
E. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Home On and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
15. Choice of Law and Forum
This Agreement and your relationship with Home On Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 13, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Santa Clara County, California and you consent to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California.
16. U.S. Government Restricted Rights
The Service shall be deemed "commercial computer software" pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Service by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived, or modified except by a written instrument signed by Home On. If any employee of Home On offers to modify this Agreement, he or she is not acting as an agent for Home On or speaking on Home On's behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of Home On or anyone else purporting to act on Home On's behalf. This Agreement is between you and Home On; there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with Home On's prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. Home On may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on Home On at firstname.lastname@example.org (in the case of Home On) or to the e-mail address you have designated on your account (in your case). Notice to you shall be deemed given 24 hours after the e mail is sent. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
The Service is Operated By
Home On, Inc.
Effective March 1st, 2016