Effective: May 25, 2018
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BY ACCESSING ELECTRIC IMP® INCORPORATED (“ELECTRIC IMP”, “WE”, “US” OR “OUR”) WEBSITE (THE “SITE”), INCLUDING ANY MATERIALS POSTED ANYWHERE ON THE SITE, OR BY ACCESSING OR USING OUR SERVICES (SEE “DEFINITIONS”, SECTION 21), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE (THE “AGREEMENT”), INCLUDING SECTION 19 (BINDING ARBITRATION AND CLASS ACTION WAIVER), WHICH AFFECTS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN US.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER”, “YOU”, “YOUR” OR “YOURS” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES.
You affirm that you are either more than 18 years of age, or possess legal parental or guardian consent, and are fully able and competent to enter into this Agreement. In any case, you affirm that you are over the age of 13, as the Site and the Services are not intended for children under 13. If you are under 13 years of age, you may not access or use the Site and the Services.
Electric imp reserves the right to modify this Agreement at any time and in its sole discretion. Modified terms will become effective immediately upon posting on the Site, or by providing such other notice as we deem appropriate. The date of the latest revision will be noted at the top of this page. Your use of the Site or the Services after the date changes become effective constitutes your acceptance of the modified terms. You are responsible for regularly reviewing this Agreement and any additional terms or notices posted on the Site.
SERVICES AND SUPPORT
Subject to the terms and conditions of this Agreement, Electric Imp will use commercially reasonable efforts to provide the Services to you. Electric Imp reserves the right to make unscheduled updates or enhancements to the Services, and to modify or discontinue, temporarily or permanently, any part of the Services at any time and without notice. Electric Imp will use commercially reasonable efforts to notify you of the changes but is under no obligation to do so. You agree that Electric Imp will not be liable to you or any other party for any modification, suspension or discontinuance of the Services.
As part of the Services registration process, you may be required to create an account and register your Customer Devices. If you choose to register for the Services and register your Customer Devices, you must provide accurate, current and complete information, and maintain it up-to-date throughout the applicable term. Electric Imp reserves the right to refuse or cancel registration of any account that Electric Imp deems to be inappropriate or contain inaccurate information.
As part of the Services, you may authorize third parties (e.g., consultants or developers) to access and contribute to your account (“Multi-User Access”). If you allow such Multi-User Access, you agree that you remain solely responsible for such third-party users, and must ensure that the third-party users are aware of and comply with the terms of this Agreement.
You must ensure that you keep strictly confidential and not share with unauthorized third parties your user IDs, login, passwords, and other access credentials. You must also ensure that all users appropriately log out from your account at the end of each session. You must notify Electric Imp immediately of any suspected or actual breach of security or unauthorized use of its account or login credentials. Electric Imp will not be liable or responsible in any way for any loss or damage arising from your failure to comply the terms of this Section or failing to take appropriate security measures associated with your accounts.
LICENSES; RESTRICTIONS AND RESPONSIBILITIES
Subject to the terms and conditions of this Agreement, Electric Imp grants you a limited, royalty-free, non-transferable, non-sublicensable and non-exclusive right and license to: (a) use the Software solely in connection with the Services; (b) distribute the impOS™ solely to end users and Subdistributors as part of the Authorized Hardware, Customer Application(s) and Customer Device(s) and solely for non-commercial purposes. No rights or licenses are granted by Electric Imp except as expressly set forth in this Agreement. Electric Imp may revoke the license at any time and in its sole discretion in the event of Customer’s violation of this Agreement or applicable law.
Except as otherwise expressly permitted in this Agreement, you shall not for yourself, or through any parent, subsidiary, affiliate, agent or any other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any part of the Services, Software or the Documentation to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Services or any other part of imp Technology; (c) allow access or permit use of the Services or any other part of imp Technology by any third party except authorized third-party contractors retained solely to provide services to you, provided that you shall be liable for all acts and omissions of such authorized third-party contractors; (d) circumvent any license keys provided with the Services; (e) modify or create derivative works based upon any part of imp Technology; (f) disclose the results of any benchmark test of imp Technology to any third party; or (g) change or remove any of Electric Imp’s proprietary notices.
Conditions of Use.
You represent and warrant that you will use the Software and Services only with the Authorized Hardware and only as part of Customer Applications or Customer Devices, and that your use will be in compliance with all applicable laws (including but not limited to policies and laws related to privacy (including but not limited to any European privacy laws), intellectual property and consumer and child protection laws. Although Electric Imp has no obligation to monitor the Firmware, Agents or other software provided by you, the functionality of Customer Devices or your use of the Services, Electric Imp may do so and may remove Firmware, Agents or any such software and suspend immediately any use of the Services that may be in violation of any of the foregoing (including that Electric Imp may remotely uninstall any Software on any Customer Devices, at which time all of your rights and licenses under this Agreement will immediately terminate).
You will not use any part of imp Technology in connection with any hardware, Customer Devices, or other applications, products or services that constitute or are used primarily for the purpose of dealing in: spyware, adware, or other malicious code; counterfeit goods; items subject to US embargo; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft; or the operation of chemical or nuclear facilities, aircraft or other human mass transportation systems, essential communication systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Services, serious bodily injury, or property or environmental damage or further or promote any criminal activity or enterprise or provide instructional information about illegal activities. In addition, you agree not to use the Services to: (a) improperly avoid incurring fees or exceed usage limits or quotas; (b) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; (c) access or attempt to access the accounts, materials, information, computer systems, devices or networks of Electric Imp or otherwise not covered by this Agreement, through password mining or any other means; or (d) solicit personal information from anyone under the age of 18.
You shall be responsible for adhering to the specifications provided by Electric Imp (available at the Electric Imp Dev Center), including without limitation specifications related to hosting Authorized Hardware on Customer Devices and Firmware, developing the Firmware and Agents and integrating the Software and APIs with Customer Devices. You also acknowledge that Electric Imp may change, deprecate or republish the APIs or Services from time to time, and that it is your responsibility to ensure that API calls or requests you makes are compatible with the then-current APIs.
Suspension of Services.
Electric Imp may suspend and deactivate immediately and without notice your use of and access to the Services in the event of a breach or threatened breach of the security or integrity of the Services or a violation or threatened violation of any restrictions or conditions in this Agreement, or for other emergency or legal reasons. Electric Imp reserves the right to audit your account and usage of the Services to confirm that your usage is in accordance with the terms of this Agreement and any applicable Order Forms.
Unless you are a party to Electric Imp’s commercial agreement or otherwise expressly authorized by Electric Imp in writing, you are not authorized to and may not display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purpose any part of imp Technology, all of which are provided to you solely for your personal, non-commercial use. Electric Imp may, in its sole discretion, authorize a limited distribution of the Services, Authorized Hardware or Electric Imp Hardware. For inquiring regarding commercial agreements with Electric Imp, please contact firstname.lastname@example.org.
You acknowledge and agree that you will be solely responsible for obtaining and maintaining your equipment, and obtaining all applicable permits and licenses. You will be responsible for ensuring that your equipment is compatible with the Authorized Hardware or Electric Imp Hardware, and complies with Electric Imp’s configurations and specifications.
To the extent there are any fees applicable to your use of the Services, as evidenced by a separate agreement or a purchase order, such fees must be paid within thirty (30) days from the date of the invoice, unless otherwise agreed in writing by Electric Imp. You must dispute any charges within sixty (60) days from the date of the invoice, or you will forfeit such right to dispute. You shall also be responsible for any applicable taxes or fees associated with your use of the Services.
PRIVACY; ELECTRONIC COMMUNICATIONS
Each party (the “Receiving Party”) understands and agrees that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, which may include personally identifying information of individuals (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Electric Imp includes without limitation non-public information regarding features, functionality and performance of imp Technology. The Receiving Party agrees to: (i) take appropriate, commercially reasonable measures to protect such Confidential Information; (ii) use Confidential Information only in connection with this Agreement or otherwise for the purpose for which it was disclosed; and (iii) not use or disclose such Confidential Information to any third party without prior express written approval of the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law subject to prior notification to the Disclosing Party. These obligations of confidentiality will continue for a period of five (5) years from the date of the disclosure of Confidential Information, except that confidentiality obligation with respect to information that is a trade secret will continue for as long as information remains a trade secret under applicable law. The Receiving Party acknowledges that an unauthorized disclosure of Confidential Information will cause irreparable harm to the Disclosing Party for which damages alone will not be a sufficient remedy. Accordingly, the Receiving Party agrees that, in addition to all other remedies available to the Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms of these Confidentiality obligations, the Disclosing Party will, without the necessity of proving actual damages or posting any bond or other security, be entitled to temporary or permanent injunctive relief.
During the Term of this Agreement, Electric Imp may offer you an opportunity to test or evaluate free versions of its software or services that may be in development or beta (“Beta Services”). You acknowledge and agree that such Beta Services will be provided to you “AS IS”, with NO WARRANTY OR SUPPORT of any kind.
TRADEMARKS AND ATTRIBUTION
The Electric Imp name and logos are trademarks and service marks of Electric Imp (collectively the “Electric Imp Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Electric Imp Trademarks without Electric Imp’s prior written permission in each instance by email to email@example.com or as otherwise expressly authorized by Electric Imp in writing. All goodwill generated from the use of the Electric Imp Trademarks will inure to Electric Imp’s exclusive benefit. The terms “exclusive”, “preferred” or other terms that imply a special relationship with Electric Imp may not be used in association with Electric Imp at any time.
THIRD PARTY CONTENT
Electric Imp may provide third party content on the Services and may provide links to website and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information. Electric Imp does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content including, but not limited to, its accuracy or completeness. You acknowledge and agree that Electric Imp is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. You assume all risk associated with such Third Party Content use. This provision will survive the use of the Services.
Electric Imp Intellectual Property.
Electric Imp owns all right, title and interest in and the impOS, Software, Services, the Documentation, all other parts of imp Technology, and all related Intellectual Property Rights. No rights or licenses are granted by Electric Imp except as expressly set forth in this Agreement. All other rights are expressly reserved by Electric Imp.
Customer’s Intellectual Property.
You own all right, title and interest in and to Customer Data, the Firmware and Agents created by you, and all related Intellectual Property Rights. With respect to Customer Data or other materials you pass through the Services, you represent and warrant that you own all right, title and interest in and to such data, including, without limitation, all copyrights and rights of publicity contained therein and that you have all required rights to post or transmit such content or other materials without violation of any third-party rights.
If you provide any suggestions or feedback or request any modifications related to imp Technology or other Electric Imp products or services (“Feedback”) to Electric Imp, Electric Imp will own all rights, title, and interest in and to the Feedback. Electric Imp will be entitled to use the Feedback without restriction, and you hereby assign to Electric Imp all right, title, and interest in and to the Feedback (and all intellectual property rights therein) and agrees to provide Electric Imp with any assistance Electric Imp may require (at Electric Imp’s expense) to document, perfect, and maintain Electric Imp’s rights in the Feedback.
Electric Imp uses the following third party open source code in the provision of its Services: https://electricimp.com/docs/releasenotes/opensource/. Electric Imp reserves the right to update the list of open source code used in the performance of its Services at any time. Your use of the Services will be subject to the applicable terms of the licenses governing use of such open source code. Further, if Customer Application(s) includes any additional open source code, your use thereof will be subject to all licensing terms applicable to such open source code. You must also separate such open source code from the Software in such Customer Application(s) and shall not cause the Software in such Customer Application(s), any derivative works thereof, and/or Electric Imp’s Confidential Information to be subject to the licensing terms applicable to such open source code (e.g., public disclosure, public distribution). You shall indemnify, defend and hold harmless Electric Imp, its distributors, licensors and customers from and against any and all claims, demands, damages, costs or expenses (including reasonable attorney’s fees) and liabilities arising out of or in relation to the use of such open source code.
You agree that Electric Imp, in its sole discretion, may suspend or terminate your account and your use of the Services, and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if Electric Imp believes that you or any of your end users have violated any term of this Agreement. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your or your end users’ use of the Services, may be referred to appropriate law enforcement authorities. Electric Imp may also in its sole discretion and at any time discontinue providing the Services to you with or without notice. You agree that any termination of your access to the Services under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Electric Imp may immediately deactivate or delete your account and all related information, data and files in your account and/or bar any further access to such files or the Services. Further, you agree that Electric Imp will not be liable to you or any third party for any termination of the Services or use of Authorized Hardware.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, SOFTWARE, AND OTHER PARTS OF IMP TECHNOLOGY, AND ALL RELATED PRODUCTS, INFORMATION AND SUPPORT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ELECTRIC IMP DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF IMP TECHNOLOGY. EXCEPT AS SET FORTH EXPRESSLY HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ELECTRIC IMP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
A limited warranty is offered for Electric Imp Hardware (see below). Warranties for the Authorized Hardware may be offered by the supplier.
ELECTRIC IMP HARDWARE LIMITED WARRANTY
For any Electric Imp Hardware, Electric Imp warrants such hardware against Defects (as defined below) for up to thirty (30) days from the date of purchase (“Warranty Period”). This limited warranty covers only repair or replacement of the Defective Electric Imp Hardware during the Warranty Period in accordance with the terms and conditions herein. “Defect” or “Defective” means that Electric Imp Hardware cannot send, receive or process Customer Data due to a malfunction or defect that was independently produced in Electric Imp Hardware. Only Electric Imp Hardware that is in new condition in its original packaging will be covered. Electric Imp shall not be liable for, and does not cover under this warranty, any costs associated with developing, servicing and/or installation of Electric Imp Hardware. The limited warranty does not cover any damage to Electric Imp Hardware that results from normal wear and tear, accident, abuse, misuse, natural or personal disaster, unsuitable physical or operating environment, improper integration, connection or maintenance by any party other than Electric Imp or any unauthorized disassembly, repair or modification. In addition, this limited warranty does not cover parts, components, slots, development boards, batteries, battery damage, low or unavailable WiFi signal strength, damage from improperly applying power or signals beyond acceptable ranges, damage from improperly housing the hardware into Customer Devices or any other damage external to the hardware. For example, this limited warranty does not cover Customer Devices or components that host or are connected to Electric Imp Hardware.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITED WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. ELECTRIC IMP DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, ELECTRIC IMP LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT ELECTRIC IMP’S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED BELOW. SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.
To return Electric Imp Hardware for warranty service, you must first submit a ticket before the end of the Warranty Period at https://support.electricimp.com indicating specific reasons for the return, the individual MAC address located on the back of the Electric Imp Hardware (if applicable) and the unique identification of the Customer Device (if applicable). Electric Imp will then evaluate your ticket. If Electric Imp determines that Electric Imp Hardware is within the Warranty Period and otherwise appears to qualify for the warranty, Electric Imp will notify you via the customer support portal and provide return instructions. If Electric Imp determines that your hardware is not covered, Electric Imp will notify you in writing and provide an explanation. If a return request has been approved, you shall be responsible for the cost of shipping Electric Imp Hardware to Electric Imp. Shipping and handling charges are not refundable. Electric Imp will pay for the return shipping. Customer must ship all returns to Electric Imp’s office address:
Upon receipt of the Electric Imp Hardware, Electric Imp will examine the hardware to confirm whether it is covered by this limited warranty. If Electric Imp determines that it is not covered, then Electric Imp is not responsible for (a) any type of repair or replacement of the Electric Imp Hardware or (b) shipping the Electric Imp Hardware back to you. If Electric Imp determines that Electric Imp Hardware qualifies for this limited warranty, Electric Imp may first attempt to repair Defective Electric Imp Hardware. However, if the Defective Electric Imp Hardware is not repairable, it will be replaced. If the Defective Electric Imp Hardware is replaced, Electric Imp reserves the right to keep the Defective Electric Imp Hardware and is under no obligation to ship it back to you. Upon repair or replacement, Electric Imp will then ship the Electric Imp Hardware back to you. If the Defective Electric Imp Hardware is not repairable or replaceable, then Electric Imp will refund to you the amount originally paid by you or the Defective Electric Imp Hardware. Part(s) repaired or replaced by Electric Imp will be warranted for the remainder of the original Warranty Period or for fifteen (15) days from the date of repair or replacement, whichever is longer. If Electric Imp Hardware is found not to be covered by this limited warranty, Electric Imp reserves the right to charge a handling fee.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ELECTRIC IMP AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO AUTHORIZED HARDWARE SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ELECTRIC IMP’S REASONABLE CONTROL, EVEN IF ELECTRIC IMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED $100).
INDEMNIFICATION AND RELEASE
You will defend, indemnify and hold harmless Electric Imp and its affiliates, officers, employees, directors, stockholders and agents from any and all damages, losses, expenses and costs, including without limitation reasonable attorneys’ and accounting fees, in any claim or action that relates to or arises out of your use or misuse of the Services, Software, Authorized Hardware, Electric Imp Hardware, breach of this Agreement, or violation of applicable law or a right of a third party. Electric Imp reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. You agree to cooperate with any reasonable requests assisting Electric Imp in the defense of such a matter.
If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
U.S. GOVERNMENT MATTERS; EXPORT
You may not remove or export from the United States or allow the export or re-export of the Services, Authorized Hardware, Electric Imp Hardware, or anything related thereto, or any direct product thereof, in each case in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. In connection with this Agreement, you will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you use the Services, Authorized Hardware, Electric Imp Hardware or any other parts of imp Technology, including without limitation your distribution of Customer Devices or Customer Applications.
Distribution Control Statement.
Pursuant to 15 C.F.R. § 758.6(a)(1), you are hereby advised that for any items that are physically shipped to you (such as, Electric Imp Hardware), the items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government, or as otherwise authorized by U.S. law and regulations.
As defined in FAR section 2.101, the Software and documentation provided by Electric Imp are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation 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.
BINDING ARBITRATION AND CLASS ACTION WAIVER
Agreement to Arbitrate.
You and Electric Imp agree that this Agreement affects interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 19 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us or the Agreement or the Services, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
If you have any dispute with us, you agree that before taking any formal action, you will contact us by email at firstname.lastname@example.org or by mail at Electric Imp, Inc.,5150 El Camino Real, Ste C-31, Los Altos, CA 940223, and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). To the extent that Electric Imp has your contact information, it will send any such notice to you by U.S. Mail, or otherwise to your email address. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
All disputes, claims, or controversies arising out of or relating to this Agreement or the Service that are not resolved by the procedure described above or mutual agreement may be resolved by final and binding arbitration to be conducted before JAMS, or its successor in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For residents outside the United States, arbitration will be held in San Francisco, California, and you and Electric Imp agree to submit to the personal jurisdiction of any federal or state court in San Francisco, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, and whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Electric Imp shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, but not limited to attorney’s fees and expert witness costs unless Electric Imp is otherwise specifically required to pay such fees under applicable law. If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing.
Notwithstanding the parties’ decision to resolve all disputes through arbitration, you or We may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). You or we may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction to the extent such claims do not seek equitable relief.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND ELECTRIC IMP AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND ELECTRIC IMP AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any of the provisions of subsection 19.2 above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Section 19 shall be null and void. The remainder of this Agreement will continue to apply.
Opting Out of this Provision.
You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to Electric Imp by email at email@example.com or by mail at Electric Imp, Inc.,5150 El Camino Real, Ste C-31, Los Altos, CA 940223. The notice must be sent within thirty (30) days of (a) the Effective date of this Agreement or (b) your first date that you used the Services that contained any version of the Agreement that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Electric Imp also will not be bound by them. If Electric Imp changes this Section 19 after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change to Section 19 by sending us written notice within 30 days of the date such change became effective, as indicated in the “Effective” date above or in the date of Electric Imp’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and Electric Imp in accordance with the provisions of this section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or subliceanseable by you except with Electric Imp’s prior written consent. Electric Imp may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Electric Imp in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement (except as otherwise expressly provided herein) will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. In the event of any litigation arising or relating to this Agreement, you expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Santa Clara County, California.
“Agent” is any software developed by you that is hosted in the imp Cloud.
“Authorized Hardware” means hardware with an embedded impOS (or an embedded encryption/impOS activation key, whichever is applicable) that is manufactured and distributed by an authorized third party pursuant to a written agreement with Electric Imp.
“Blessing” or “Blessed” means the process of bonding of a Customer Device using Customer unique ID with the Services.
“BlinkUp™ SDK” means a software development kit provided by Electric Imp to you under this Agreement to enable connectivity and enrollment to the Services via Customer Applications.
“Customer Data” means any information that passes to or from Authorized Hardware using the Services, excluding any framing and security layers provided by Electric Imp that wrap or are related to such information.
“Customer Application(s)” means a service or application, including mobile and web applications, offered by you that integrates the Services and the Authorized Hardware, and that is part of a Customer Device.
“Customer Device” means a product offered by you to an end user that integrates the Authorized Hardware, is Blessed according to the Documentation and connects to the Services.
“Documentation” means manuals, specifications, instructions and other documents and materials that Electric Imp provides or may provide or make available to you in any form or medium which describes the functionality, components, features or requirements of the imp Technology, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Electric Imp Hardware” means Electric Imp-branded hardware that you order directly from Electric Imp (e.g., via the Site) and Electric Imp ships directly to you, as evidenced by the purchase order and shipping documentation.
“end user” means the users of a Customer Device (other than the Customer).
“impCloud™” means the supporting service which connects the imps, Agents and the API access.
“impModule™” means a module that enables a Customer Device to connect to the Services. More details on the imp Module can be found at the Electric Imp Dev Center available at http://electricimp.com/docs/. Authorized Hardware includes imp Module.
“impOS™” means Electric Imp’s proprietary operating system, including related software libraries, that enables the Authorized Hardware and agents to be connected to the Services.
“imp Technology” will refer collectively to Electric Imp proprietary technology provided to you under this Agreement, including without limitation: the impOS, the impCloud, the Software, the Services, Support, Electric Imp Hardware, imp Module, API and IDE, Ops Console, Build API, BlinkUp SDK, the Documentation and the libraries, and all related files and applications and as further described in an Order Form.
“Intellectual Property Rights” means trade secrets, patents and patent applications, trademarks, service marks, trade names, copyrights (including rights in computer code or software), moral rights, rights in know-how and any and all renewals or extensions thereof, derivative rights, improvements, enhancements, modifications and all other equivalent or similar rights which may subsist anywhere in the world.
“Firmware” is any software developed by you that is included on a Customer Device and is bundled with an Agent in the imp Cloud, which together are designed to be compatible with the Services and Authorized Hardware.
“Order Form” means an ordering document specifying the Services provided by Electric Imp to you under this Agreement and applicable Fees, including any addenda and supplements thereto. Each Order Form may be executed as a standalone document signed by the Parties and is subject to and governed by the terms and conditions of this Agreement.
“Services” means the services offered by Electric Imp that are designed to enable connectivity to your devices and include, collectively, the Electric Imp mobile app that includes BlinkUp™ and additional information, documentation and resources available at https://electricimp.com.
“Software” means Electric Imp’s proprietary impOS, the Documentation, mobile applications, development environments, APIs, libraries, the BlinkUp SDK, embedded software, server and back-end software, libraries and any other software or files related to the Services (or upon which the Services are based) that is licensed to you under this Agreement and as further described in an Order Form.
“Subdistributors” means respectively third parties who distribute the Services to end users or other distributors.
Please contact Electric Imp at firstname.lastname@example.org to report any violations of this Agreement or if you have any questions regarding this Agreement or the Services.