Thank you for choosing ClareHome™ Automation offered by Clare Controls, LLC (the "Company"). These terms and conditions ("Terms") govern your use of the ClareApp software and any premium service (as described on www.clarecontrols.com) to which you may subscribe (collectively referred to as the "Service"). These Terms also describe the user license granted to you (the "EULA") for the use of the software which enables you to use the Service (collectively referred to as the "Software"). "EULA" and "Terms" are collectively referred to as the "EULA Terms."
Please read these EULA Terms before registering for or using the Service or the Software. By completing your registration and by subsequently signing in or using the Software, you will become a registered user of the Service and Software (a "Subscriber"). You also agree to conduct business electronically and to be bound by these EULA Terms. IF YOU DO NOT AGREE TO THESE EULA TERMS OR TO DO BUSINESS ELECTRONICALLY, PLEASE DO NOT REGISTER FOR THE SERVICE OR USE THE SOFTWARE. These EULA Terms are subject to change by the Company at any time; however, the most current version will be available to you on the Clare Controls website. You are encouraged to regularly review these EULA Terms on the Clare Controls website to ensure that you are aware of any changes. By continuing to use the Service or the Software after changes in these EULA Terms have been posted on the Company’s website, you agree to be bound by the most current version of these EULA Terms.
2. CHANGES/UPGRADES TO THE SERVICES
The Company has the right, in its sole discretion, to modify or change the Services and/or Software and any related Fees (as defined below), and will notify you of such changes via the Website, or if there are material changes to the Services and/or Software, the Company will notify you via the e-mail address provided by you during registration. Your continued use of the Service and/or Software after such modification(s) or change(s) are made constitutes your acceptance of such Service, Software, and/or Fees as modified. However, if at any time you are not satisfied with the Service, Software, and/or Fees, you will always have the right to terminate the Service subject to the terms provided in Section 9 below.
3. LICENSE GRANT AND SCOPE.
Subject to the terms of these EULA Terms, including payment of all required Fees and charges, the Company grants you a limited, non-exclusive and nontransferable license to:
4. LICENSE RESTRICTIONS.
You agree that you will not:
5. RESERVATION OF RIGHTS.
You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under these EULA Terms, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under these EULA Terms. The Company and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in these EULA Terms.
6. USE OF SERVICE
Please note that all compatible Mobile Devices require an internet data plan to work with the Software.
All fees related to the Service (the "Fees") are due in advance of the Service being provided and will include all applicable sales tax and will be billed to you and transacted by the Company or its designated third party provider. The account that you provide for payment purposes will be automatically debited/charged on each monthly or annual anniversary date of your registration dependent upon your selection of the account payment frequency until the Service is terminated. If you select an additional Service that is subject to additional Fees (e.g. premium features), those Fees will be prorated in accordance with the selected start date in the event that the start date for those additional Services and Fees is not the first day of your existing billing cycle. All prorated fees will be due immediately.
Each renewal of your subscription will be billed at the applicable Fees in effect at the time of the renewal. You will not receive billing statements. Any questions or claims regarding billing can be directed to the Company's customer service. If you wish to dispute a charge for Services, please call the Company's customer service within 90 days of your payment of the charge in question, otherwise you waive your right to dispute the charge.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER AS TO THE AVAILABILITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICE, THE WEBSITE, OR THE SOFTWARE AND ALL ASSOCIATED SERVICES AND INFORMATION (COLLECTIVELY "CLARE CONTROLS SERVICES") OR FOR ANY THIRD PARTY COMPONENTS PURCHASED BY YOU OR THIRD PARTY SERVICE PURCHASED BY COMPANY. THE CLARE CONTROLS SERVICES ARE BEING PROVIDED TO YOU ON "AS-IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE CLARE CONTROLS SERVICES IS AT YOUR SOLE RISK. ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED, OR STATUTORY. THE COMPANY FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE OR SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, HARDWARE, DEVICE, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
THE THIRD PARTY LINKS, RESOURCES, AND CONTENT AVAILABLE WITH THE CLARE CONTROLS SERVICES ARE NOT CONTROLLED BY THE COMPANY, AND THE COMPANY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH THIRD PARTY LINKS, RESOURCES, AND CONTENT INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE COMPANY WILL NOT BE LIABLE FOR YOUR ACCESS TO, USE OF OR DOWNLOADING OF CONTENT AVAILABLE ON OR THROUGH, THE SERVICE OR WEBSITE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
THE COMPANY DOES NOT AUTHORIZE ANY PERSON, INCLUDING ITS EMPLOYEES, TO CREATE FOR IT ANY OBLIGATION OR LIABILITY IN CONNECTION WITH THE SERVICES OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION OR DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, PERSONAL OR REAL PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE) AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO (a) THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES; OR (c) ANY OTHER MATTER RELATING TO THE SOFTWARE OR SERVICES. EXCEPT AS OTHERWISE PROVIDED IN THESE EULA TERMS, IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SOFTWARE OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CANCEL AND DISCONTINUE USING THE SOFTWARE AND/OR SERVICES AND TO RECEIVE A REFUND AS PROVIDED IN THESE EULA TERMS FOR ANY WHOLE MONTHS OF SERVICES YOU HAVE PREPAID. IN NO INSTANCE WILL THE COMPANY’S LIABILITY TO YOU EXCEED THE FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM AT ISSUE AND YOU AGREE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF THE COMPANY OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OF LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
BY REGISTERING FOR OR USING THE SERVICE OR THE SOFTWARE, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD CLARE CONTROLS LLC, ITS PARENT COMPANY, SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND LICENSORS, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, DEMANDS, PROCEEDINGS, SUITS AND ACTIONS, INCLUDING ANY RELATED LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, FINES, JUDGMENTS, SETTLEMENTS, EXPENSES (INCLUDING ATTORNEYS' AND ACCOUNTANTS' FEES AND DISBURSEMENTS) AND COSTS INCURRED BY, BORNE BY OR ASSERTED AGAINST THE COMPANY TO THE EXTENT SUCH CLAIM IS IN ANY WAY RELATED TO, ARISES OUT OF, OR RESULTS FROM YOUR USE OF THE SERVICES OR SOFTWARE.
11. AGREEMENT TO MANDATORY ARBITRATION
Instead of suing in court, you and the Company agree to resolve all disputes and claims between us only by binding and bilateral arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited. YOU AGREE THAT, BY AGREEING INTO THESE EULA TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. However, just as a court would, the arbitrator can award damages and relief, including any attorneys' fees if authorized by law. The arbitrator's decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
References to the "Company," "you" and "us," for purposes of this agreement to arbitrate include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, heirs, guardians, successors and assigns, and all authorized or unauthorized users or beneficiaries of the Services or Software.
This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to (a) disputes and claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (b) claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); (c) claims that may arise after the termination of your relationship with the Company; and (d) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class.
This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, and notwithstanding the other provisions of this arbitration agreement, either party may bring an individual action in small claims court.
The Federal Arbitration Act, 9 U.S.C. 1, et seq. (the "FAA") governs the interpretation and enforcement of this agreement to arbitrate. The FAA's provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
Unless otherwise agreed to by you and the Company in writing, the arbitration will be governed and conducted by JAMS (https://www.jamsadr.com/). The arbitration will be presented to a single neutral arbitrator who is licensed to practice law. Both parties shall participate in the selection of the arbitrator as provide by the JAMS rules. The JAMS rules, including the selection of an arbitrator, filing, administration, discovery and arbitrator fees will be conducted under JAMS Comprehensive Arbitration Rules & Procedures, except as modified by this agreement to arbitrate or otherwise agreed to by you and the Company in writing. The JAMS rules are available at https://www.jamsadr.com/adr-rules-procedures/. To the extent that this agreement to arbitrate conflicts with JAMS's Consumer Minimum Standards, the JAMS's Consumer Minimum Standards in that regard shall control. NOTHING IN THIS PARAGRAPH SHALL REQUIRE OR ALLOW YOU OR THE COMPANY TO ARBITRATE ON A CLASS-WIDE OR CONSOLIDATED BASIS, SUCH RIGHT BEING EXPRESSLY WAIVED.
NEITHER THESE EULA TERMS NOR THIS AGREEMENT ALLOW CLASS ARBITRATIONS, EVEN IF JAMS PROCEDURES OR RULES WOULD. RATHER, YOU AND THE COMPANY ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDUAL BASIS, AND UNLESS YOU AND THE COMPANY AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY'S CLAIMS WITH ANY OTHER PARTY'S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.
You and the Company are each responsible for their respective costs relating to counsel, experts, and witnesses, and any other costs relating to the arbitration. The Company, however, will pay for the arbitration administrative or filing fees, including the arbitrator and/or other JAMS case management fees, for any dispute of $75,000 U.S. Dollars or less, unless the claim is determined by the arbitrator to be frivolous. Otherwise, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses, Minimum Standards of Procedural Fairness regarding costs and payment apply.
Unless you and the Company agree otherwise in writing, the arbitration will take place in the county or Province of your billing address.
An arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself.
IF FOR SOME REASON THE PROHIBITION ON CLASS AND/OR REPRESENTATIVE ARBITRATIONS SET FORTH ABOVE CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
If for any reason a claim proceeds in court rather than through arbitration, you and the Company agree that there will not be a jury trial. YOU AND THE COMPANY UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE SERVICE, SOFTWARE AND/OR THESE EULA TERMS IN ANY WAY. In the event of litigation, this paragraph may be filed to show a written consent to a bench trial.
Except as provided in the immediately preceding paragraph, if you or the Company fail to comply with this arbitration provision, the breaching party shall be liable for the costs and attorneys' fees incurred by the other party in enforcing compliance with the arbitration agreement.
12. TERM AND CANCELLATION
Your Service will commence upon your acceptance of these EULA Terms and will continue until cancellation by either you or the Company as provided herein. Any cancellation will take effect immediately and all access to the Service and right to use the Software shall also immediately cease.
If you prepay for any Services that you cancel prior to the use of those Services, we will provide you with a credit to your account in the amount equal to the unused portion of the prepaid Services. No credits for partial months will be given. When your account is closed, we will review your account and refund any excess monetary payments. Unused promotional credits have no cash value and are not refundable. The Company reserves the right to suspend or cancel the Services or your use of the Software at any time if you fail to pay amounts owing to the Company when due, violate or breach any of these EULA Terms, or for any other reason in its sole discretion. If your Service is suspended or cancelled, you will still be responsible for payment of all outstanding balances accrued through the cancellation date, including any fees described herein.
You will have a right, at any time, to cancel the Service upon notice to the Company's customer service. Upon such notice, you will not receive a refund of any Fees paid during the month Service was cancelled. In the event you have an annual subscription, you will receive a refund based on the number of unused whole months left in the current term. All refunds will be made to the payment card currently on file with the Company. You are responsible for working directly with the payment card companies to ensure you receive such credits made by Company.
If you have any questions regarding these EULA Terms or any terms referenced herein, please contact the Company in any manner as follows:
Clare Controls LLC
7519 Pennsylvania Ave, Suite 104
Sarasota, FL 34243 ClareHome
Premium Product Manager
BY USING THE CLARE CONTROLS SERVICES OR SOFTWARE, I REPRESENT THAT I HAVE READ AND UNDERSTAND THE ENTIRE EULA TERMS, AND I AGREE TO ALL THE TERMS AND CONDITIONS AS STATED ABOVE.