THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT THESE TERMS ARE SUBJECT TO CHANGE BY SmartHome LLC IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, SmartHome LLC will make a new copy of the Terms available at https://pyxis.cloud/ (the “Website”) and from within the Application. We will also update the “Last Updated” date on the Terms. If you have registered with us to create an Account (as defined below), we may also send you an email to the last e-mail address you provided to us. We may require you to provide consent to the updated Terms in a specified manner before further use of the Website, the Application or the services made available via the Website and Application (the “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 Application and/or Services. Otherwise, your continued use of the Application and/or Services constitutes your acceptance of such changes. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
Your use of, and participation in, certain services may be subject to additional terms ( “Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you when you sign up to use the supplemental service. If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such supplemental service.
- License Grant.Subject to the terms and conditions of these Terms, we grant to you a limited, non-exclusive and non-transferable license to install and use the Application on the applicable Device(s) solely for your personal use (or internal use, if you are an entity) in connection with the Services we provide. Furthermore, if you have downloaded the Application through the Apple App Store, you may only use the Application (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating systems), and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. We are under no obligation to provide technical support under these Terms and make no assurance that any specific errors in the Application will be corrected.
- Restrictions on Use.You will not, directly or indirectly, (i) modify, adapt, alter, translate, or create derivative works from the Application or the Services; (ii) merge the Application with other software except as specifically permitted in the documentation; (iii) sublicense, lease, rent, loan, distribute, sell or otherwise transfer or make available the Application or the Services to any third party except as specifically permitted by these Terms; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Application or the Services, except to the extent permitted by applicable law; (v) tamper with the security of the Application, Services, or other customer accounts; (vi) attempt to access data on the Application or Services not belonging to or intended for you; (vii) attempt to probe, scan test, or breach the security of the Application or Services; or (viii) use the Application to access or control Devices not belonging to you. Nothing in these Terms limits your rights under, or grants you rights that supersede, any end user license for any open source software incorporated into the Application.
- You acknowledge and agree that as between us and you, title to and ownership of the Website, Application, and Services, including all reproductions, corrections, enhancements, derivative works, and other modifications, whether made by us or any third party, and all intellectual property rights therein, are and will at all times be deemed our sole and exclusive property. We reserve all rights not expressly granted to you in these Terms.
- YOUR OBLIGATIONS.
- Your Account.In order to use the Application and Services, you must create an account (an “Account”). In registering for an Account, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Application’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You must not allow anyone other than you to access or use the Account. You must immediately notify SmartHome LLC of any unauthorized use of your password or any other breach of security of your Account.
- Your Information.If you upload, post, provide or otherwise make available any information via the Application or Services ( “Your Information”), you acknowledge that we may store Your Information on your behalf, all in connection with your use of the Application and Services. You hereby grant us and our agents and third-party partners a limited non-exclusive, non-transferable license to use, perform, display, copy, distribute, digitally transmit and create derivative works of Your Information to provide and improve our applications and services. You represent and warrant that you have the right to provide us with the foregoing license and that Your Information does not infringe or violate any patents, copyrights, trademarks or other intellectual property rights, or misappropriate the trade secret, or violate the privacy rights of any third party. As between you and us, you retain ownership of Your Information. You acknowledge and agree that you remain solely responsible and liable for Your Information. Unless expressly agreed to by SmartHome LLC separately and in writing, SmartHome LLC has no obligation to store any of Your Information. SmartHome LLC will have no responsibility or liability for the deletion or accuracy of Your Information, or for the security, privacy, storage, or transmission of other communications originating with or involving the use of the Application.
- High Risk Activity.You acknowledge and agree that the Application is not intended for use with any high risk or strict liability activity, including, without limitation, life support or emergency medical operations or uses; air traffic control; weapons systems; military or space equipment requiring radiation hardened components; and Enhanced 911 or the E911 emergency calling systems. We make no warranty and will have no liability arising from any use of the Application in any high risk or strict liability activities.
- These Terms are effective as of the date you accept them (as provided in the preamble) and will continue until terminated as provided herein. We may immediately terminate these Terms and the license granted hereunder if you fail to comply with these Terms or if we decide to cease making the Application or the Services generally available. Upon such termination, you must immediately stop using the Application and destroy or delete all copies of the Application. You may terminate these Terms and the license granted hereunder at any time by destroying or deleting all copies of the Application. Sections 1(b) 2, 3(d), and 4 – 12 will survive any termination of these Terms.
- SmartHome LLC currently offers the Application free of charge. However, SmartHome LLC reserves the right to charge for the Application and/or Services in the future upon posting notice to you on the Website and/or within the Application.
- APP STORES.You acknowledge and agree that the availability of the Application 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 these Terms are between you and SmartHome LLC, and do not involve the App Store company. SmartHome LLC, not the App Store, is solely responsible for the Application, including the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance and 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 Application. 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 company and its subsidiaries are third-party beneficiaries of the Terms and will have the right to enforce them.
- NO WARRANTY.THE APPLICATION AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” WE EXPRESSLY DISCLAIM ALL WARRANTIES REPRESENTATIONS, AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE APPLICATION, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO APPLICATION WHEN ENTERING INTO THESE TERMS AND THAT YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APPLICATION AND SERVICES.
- LIABILITY LIMITATION.OUR CUMULATIVE LIABILITY TO YOU FOR ANY LOSS OR DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS, THE APPLICATION, THE WEBSITE, OR THE SERVICES WILL NOT EXCEED $50 OR THE AMOUNT OF FEES PAID TO US BY YOU UNDER THESE TERMS DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER, WHICHEVER IS GREATER. IN NO EVENT WILL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OR DAMAGE TO DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY OF THESE TERMS.
- APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS.The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods for household use. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
- BASIS OF BARGAIN.The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between you and us. SmartHome LLC would not be able to provide the Application or the Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of SmartHome LLC’s suppliers as well.
- Entire Agreement.These Terms constitute the entire agreement between us and supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to the subject matter hereof, whether oral or written. No term or provision of these Terms will be considered waived by either of us, and no breach excused, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
- You may not assign or transfer, by operation of law or otherwise, any of your rights under these Terms (including any licenses granted herein) to any third party without our prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. SmartHome LLC may assign these Terms in its discretion.
- Compliance With Laws.Each of us is responsible for our own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and these Terms. You agree to comply with all such laws, regulations and other legal requirements.
- Governing Law and Dispute Resolution.These Terms will be governed by and construed under the laws of the United States and the State of Colorado, without giving effect to any principles that may provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. We each hereby submit to the exclusive jurisdiction of, and waive any venue objections against, the state and federal courts located in Denver, Colorado in any litigation arising out of or in connection with these Terms. Notwithstanding the foregoing, we each will have the right at any time to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world.
- Contact Information.Any inquiries regarding these Terms, the Application, or the Services may be addressed to us at firstname.lastname@example.org.
- Electronic Communications.The communications between you and SmartHome LLC use electronic means, whether you visit the Website, use the Application or send SmartHome LLC e-mails, or whether SmartHome LLC posts notices on the Website or within the Application, or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SmartHome LLC in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SmartHome LLC 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.
- Force Majeure.SmartHome LLC will not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, or strikes.
- Export Control.You may not use, export, import, or transfer the Application or Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the 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 Persons 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 or Services 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 SmartHome LLC 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 SmartHome LLC products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints.In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Dispute Resolution.Please read this Arbitration Agreement carefully. It is part of your contract with SmartHome LLC and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement.All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by SmartHome LLC 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 English. This Arbitration Agreement applies to you and SmartHome LLC, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- 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 SmartHome LLC should be sent to the address noted herein. After the Notice is received, you and SmartHome LLC may attempt to resolve the claim or dispute informally. If you and SmartHome LLC 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 arbitrate, the parties shall 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 the Terms. 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. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration.If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Authority of Arbitrator.If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and SmartHome LLC, 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 the Terms. 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 SmartHome LLC.
- Waiver of Jury Trial.THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A 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 between you and SmartHome LLC in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SMARTHOME LLC 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 Terms, neither you nor SmartHome LLC 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 Terms.
- All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- 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.
- Right to Waive.Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement.This Arbitration Agreement will survive the termination of your relationship with SmartHome LLC.
- Small Claims Court.Notwithstanding the foregoing, either you or SmartHome LLC may bring an individual action in small claims court.
- Emergency Equitable Relief.Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- 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.