THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of this Agreement available at the Website or within the Application. We will also update the “Last Updated” date at the bottom of this Agreement. If you are a registered user of the Services, we may also send you an email address you provided pursuant to this Agreement. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, Application or Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, Application and/or the Services. Otherwise, your continue use of the Website, Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT
ACCESS TO THE SERVICES. The www.rachio.com website and domain name and any other linked pages, features, content, or application services (including without limitation any mobile application services) offered from time to time by Company in connection therewith (collectively, the “Website”), App and services enabled via the Website and App (the “Services”) are owned and operated by Company. Subject to the terms and conditions of this Agreement, the Company hereby grants you a nonexclusive, nontransferable, nonsublicensable right and license: (a) to access and use the Website and Services solely for your personal use; and (b) download, install and use a copy of the Application on the mobile devices you own and control. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Source Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system), and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Company may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or Content. Company may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. You may choose to use the Services in connection with the Company WiFi sprinkler controller device (the “Product”). You may use the Services in connection with the Product only after you have purchased the Product and read and accepted the terms of sale that accompany the Product (“Product Terms of Sale”) before using the Product or accessing the Services in connection with your use of the Product.
CONTENT.You acknowledge that that all pictures, videos, images, text, audio visual content, information, data, materials and other content available via the Website, Application and/or Services (“Content”) is the sole responsibility of the party from whom such Content originated. In the event you upload, deliver, post or otherwise make available any Content on or via the Website, Application or Services (a “User Submission”), you hereby grant to the Company a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicenseable and transferable right to fully exploit such User Submissions (including all related intellectual property rights) in connection with the Services, the Website, and Company’s (and its successors’ and assigns’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. Except for the rights granted to the Company herein, you retain all rights in and to your User Submissions. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Under no circumstances will Company be liable in any way for any Content provided by any third party, 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. You acknowledge that the Company has no obligation to pre-screen Content, although the Company reserves the right in its sole discretion to pre-screen, refuse or remove Content. By entering into this Agreement, you irrevocably consent to such monitoring.
RESTRICTIONS. You warrant, represent and agree that you will not upload, post or make available any User Submission or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. You, not Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Services and as otherwise provided herein. You are responsible for all of your activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Services. Use of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Website, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Website, Application or Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services.
WARRANTY DISCLAIMER. Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. The Website may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any Content made available by third parties contained in or accessed through the Services, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of such Content. Company makes no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING, THE SERVICES, APPLICATION, CONTENT, WEBSITE, AND PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU
SPECIAL DISCLAIMER AND RELEASE. You acknowledge and agree that the Website, Application, Product and Services are designed to enable end users to automate their sprinkler systems, and that such automation is controlled solely by the applicable end user. Accordingly, you acknowledge and agree that the Company shall not be liable for your use or misuse of the Website, Application, Product or Services, including, without limitation for, any water damage, excessive watering, under-watering, property damage (such as dead plants or grass), mudslides, sink holes, mold, mildew, fungi, or bacterial growth caused by your use of the Services, or for any fines, fees or penalties levied by any governmental, or quasi-governmental agency, with respect to your use or misuse of the Services. You shall indemnify, defend and hold harmless for any actions, claims, damages, demands, judgments, liabilities, losses, penalties or settlements arising from the foregoing. You hereby release the Company, its affiliates and their respective directors, officers, employers, agents, successors and assigns from any claims, demands, any and all losses, damages, rights and actions of any kind, including personal injuries, death and property damage, that is either directly or indirectly related to or arise from your use of the Website, Application, Product or Services, including but not limited to property damage caused by overwatering or under-watering, or any fines, fees, or penalties assessed by any governmental or quasi-governmental entity related to your watering activities. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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."
REGISTRATION AND SECURITY. As a condition to using some aspects of the Services, you may be required to register with Company and select a password and user name (“Company User ID”). You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a Company User ID a name of another person with the intent to impersonate that person; or (ii) use as a Company User ID a name subject to any rights of a person other than you without appropriate authorization. Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password. If you access the Service through a third party site or service, you will provide your third party account credentials to Company, and you are consenting to have the information in those accounts transmitted into your Company account, and you agree that you shall only use accounts owned by you, and not by any other person or entity. Company does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register for the Services. If you are under 13, please do not attempt to register for the Services or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 13 may provide any personal information to Company or on the Services. In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 13, please contact us at firstname.lastname@example.org. You represent and warrant to Company that: (i) you are an individual (i.e., not a corporation) and you are of legal age to form a binding contract or have your parent’s permission to do so, and you are at least 13 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You also certify that you are legally permitted to use and access the Services and take full responsibility for the selection and use of and access to the Services. This Agreement is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions.
INDEMNITY. You will indemnify and hold Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use of the Services, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY, IT AFFILIATES OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE, APPLICATION OR THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF $250 OR THE FEES PAID BY YOU FOR THE SERVICES AND ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE SERVICES DURING THE 12-MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
FEES AND PAYMENT. Although some of our Services are currently free to users, Company reserves the right to require payment of fees for certain or all Services. You agree to pay all applicable fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide the Company with a valid credit card (Visa, MasterCard or any other issuer accepted by us) or PayPal account (“Payment Provider”) as a condition to signing up to certain Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing the Company with your credit card number or PayPal account information, and associated payment information, you agree that Company is authorized immediately invoice your account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. You agree to immediately notify Company of any change in your billing address or the credit card or PayPal account used for payment hereunder. Company reserves the right to change its fees and charges and to institute new fees and/or charges at any time, upon notice to you, which may be sent by email or posted on the Website or within the Application. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. Any fees paid hereunder are non-refundable.
MISCELLANEOUS. The communications between you and the Company use electronic means, whether you visit the Website or send Company emails, or whether the Company posts notices on the Website or within the Application or communicates with you via email. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company’s prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to the Services, and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the Services, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. Notwithstanding the foregoing, the parties acknowledge the existence and validity of the Product Terms of Sale, which governs your use of the Product, if applicable. In the event of any conflict between this Agreement and the Product Terms of Sale, the Product Terms of Sale shall control with respect to the subject matter of such Product Terms of Sale only. 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 Company in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.
GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado consistent with the Federal Arbitration Act, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
DISPUTE RESOLUTION. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with the Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION.
Applicability of Arbitration Agreement. All claims and disputes arising from or relating to the subject matter of this Agreement or the use of any product or service provided by the Company (excluding claims for injunctive or other equitable relief as set forth below) that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in the English language.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and the requested relief. A Notice to the Company should be sent to: Rachio, Inc, Attn: Legal, 1321 15th Street, Denver, CO 80202. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitration, the parties agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Agreement. The arbitration shall be conducted by a single neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Company.
Waiver of Jury Trial. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise by you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, then notwithstanding anything to the contrary in this Arbitration Agreement or Agreement, neither you or Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in the subsection titled “Courts” below.
Small Claims Court. Notwithstanding the foregoing, either you or Company may bring an individual action in small claims court.
Survival of Agreement. This Arbitration Agreement will survive termination of your relationship with Company.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Denver County, Colorado, for such purpose.
COPYRIGHT DISPUTE POLICY. It is Company’s policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
- You contact information including address, telephone number and, if available, email address;
- A statement made by you that you have a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
APP STORES. You acknowledge and agree that the availability of the Application and the Services enabled thereby is dependent on the third party from whom you received the Application license, e.g. the Apple App Store or Google Play (“App Store”). You acknowledge that the Agreement is between you and Company and not the App Store. Company, not the App Store, is solely responsible for the Website, Application and Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App and/or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g. the App Store’s terms and policies) when using the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce it.
EXPORT CONTROL. You may not use, export, import, or transfer Application except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Application, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
SUPPORT; CONTACT US. If you have any questions, complaints, or claims with respect to the Services, you may contact us at email@example.com. We currently only provide support to end users located in the United States and Canada; provided, that, such support will be provided solely in accordance with the Company’s standard support practices.
Last Updated: March 23. 2017