climote Home Energy Management
About this Agreement, our Products and Services and your rights
climote Limited (“climote”, “we”, “us”, or “our”) will provide to you (“you”, “your”, or “Customer”) on the terms and conditions set forth in this Agreement for Home Energy Management (the “Agreement”) products and services to manage and optimise the use of the heating and cooling systems in your home, which may include heating control, energy efficiency, peak load reduction and system diagnostic services (each a “Product” or a “Service” and collectively the “Products and Services”).
The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Products and Services unless otherwise indicated. Additional terms and conditions applicable to any physical Products (for example, a heating controller or a thermostat) provided by climote are included in this Agreement in the section titled “Products and Software”.
We may change our prices, fees, the Products and Services and/or the terms and conditions of this Agreement in the future. Unless this Agreement or applicable law specifies otherwise, we will give you thirty (30) days prior notice of any significant change to this Agreement. If you find the change unacceptable, you have the right to cancel your Service(s). However, if you continue to receive Service(s) after the end of the notice period (the “Effective Date”) of the change, we will consider that you have accepted the changes. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.
Note: This Agreement contains a binding arbitration provision in Section 13 that affects your rights under this Agreement with respect to all Services.
General Terms And Conditions
1. Acceptance of this Agreement
You will have accepted this Agreement and be bound by its terms if you use the Products and Services or otherwise indicate your affirmative acceptance of this Agreement.
2. Charges and Billings
i. Charges, Fees and Taxes that you must pay.
You agree to pay all charges associated with the Products and Services including, but not limited to, Product purchase charges, installation charges, monthly service charges, service call charges and all local taxes including VAT. YOU WILL BE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES AND TAXES THAT BECOME APPLICABLE RETROACTIVELY. We will provide you with notice and an effective date of any change in our prices or fees, unless the change in price is related to a change in government taxes, fees or assessments, in which case we may elect not to provide notice except where required by law. Not all fees apply to all Products and Services.
ii. How We Will Bill You.
Unless you have signed a minimum term addendum, Services are provided to you on an annual basis. You will generally be billed annually in advance for recurring service charges and fees. IN ADDITION, UNLESS OTHERWISE SPECIFIED BY CLIMOTE, YOU MUST PAY, ON OR BEFORE THE DAY WE INSTALL ANY OR ALL OF THE PRODUCTS AND SERVICES, PRODUCT PURCHASE CHARGES, ANY DEPOSITS, THE FIRST YEAR’S SERVICE CHARGES AND ALL INSTALLATION CHARGES. If you make partial payment of any bill, we will apply that payment to the outstanding charges in the amounts and proportions that we determine. However, we do not waive our rights to collect the full balance owed to us by accepting partial payment.
iii. Third-Party Charges That Are Your Responsibility.
You acknowledge that you may incur charges with third-party service providers that are separate and apart from the amounts charged by us. These may include charges resulting from accessing the Internet, purchasing or subscribing to other offerings via the Internet or purchasing equipment for use with or recommended by the Service, if applicable, or otherwise. You are solely responsible for all charges payable to third parties, including all applicable taxes. In addition, you are solely responsible for protecting the security of credit card and other personal information provided to others in connection with such transactions.
iv. e.Payment by Credit Card or Cheque.
If you use a credit card to pay for the Products and Services, its use is governed by the card issuer agreement for that card, and you must refer to that agreement for your rights and liabilities as a cardholder. If climote does not receive payment from your credit card issuer or its agents, you agree to pay all amounts due upon demand. If you make payment by cheque, you authorise climote to collect your cheque electronically. You agree that you may not amend or modify this Agreement with any restrictive endorsements (such as “paid in full”), releases, or other statements on or accompanying cheques or other payments accepted by climote and that any such notations shall have no legal effect.
v. Our Remedies if you pay late or fail to pay
a. Late or Non-Payments:
You may be billed fees, charges and assessments related to late payments or non-payments if for any reason (A) climote does not receive from you any required payment for the Products and Services by the payment due date or (B) you pay less than the full amount due for the Products and Services.
b. Fees Not Considered Interest or Penalties:
climote does not anticipate that you will fail to pay for the Services on a timely basis, and we do not extend credit to customers. Any fees, charges, and assessments due to late payment or non-payment are not interest, credit service charges, or finance charges or penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when we set such fees, charges, and assessments, because we cannot know in advance: (A) whether you will pay for the Services on a timely basis, if ever; (B) if you do pay late, when you will actually pay; and (C) what costs we will incur because of your late payment or non-payment.
c. Collection Costs:
If we are required to use a collection agency or solicitor to collect money owed by you, you agree to pay the reasonable costs of collection. These costs include but are not limited to any collection agency’s fees, reasonable solicitors’ fees, and arbitration or court costs.
If you fail to pay the full amount due for any or all of the Services then climote, at its sole discretion in accordance with applicable law, may suspend or disconnect any or all the Services you receive.
e. Reconnection Fees and Related Charges:
Should you wish to resume a Service after any suspension, we may require you to pay a reconnection fee. Should you wish to reinstate any or all Services after disconnection, we may require you to pay an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. Reconnection of the Services is subject to our credit policies, this Agreement and applicable law.
f. Our Right to make Credit Inquiries:
YOU AUTHORISE CLIMOTE TO MAKE INQUIRIES AND TO RECEIVE INFORMATION ABOUT YOUR CREDIT EXPERIENCE FROM OTHERS, TO ENTER THIS INFORMATION IN YOUR FILE, AND TO DISCLOSE THIS INFORMATION CONCERNING YOU TO APPROPRIATE THIRD PARTIES FOR REASONABLE BUSINESS PURPOSES.
vi. Your Responsibilities Concerning Billing Questions.
Subject to applicable law, if you intend to dispute a charge or request a billing credit, you must contact climote within forty five (45) days of the date on the bill. You waive any disputes or credits that you do not report within forty five (45) days.
3. Refund Policy
We require you to pay in advance when you order the Products and Services.
By law, customers in the European Union have the right to withdraw from the purchase of an item within seven working days of the day after the date the item is delivered. Where you’re withdrawing from your purchase within the seven working day cooling-off period, and there’s been no error on our part, we’ll refund the cost of the Product and all applicable pre-paid Service and delivery charges, provided the Product has not been installed.
We regret that we cannot accept cancellations once the Product has been installed and we will charge for installation and all other services provided to you in connection with your purchase unless there has been an error on our part, or the Product is defective.
We shall return your refund subject to these conditions within forty-five (45) days or as otherwise specified by applicable law (without interest unless otherwise required by law) minus any amounts due on your account (including without limitation, any amounts owed for Services or for any Product that is damaged, altered, or not returned).
We may also require you to pay a refundable deposit after activation of the Service(s) if you fail to pay any amounts when they are due hereunder. If we disconnect your Service(s) or are otherwise required under applicable law to refund the deposit, we shall within forty-five (45) days or as otherwise specified by applicable law return a sum equal to the deposit(s) you paid (without interest unless otherwise required by law) minus any amounts due on your account (including without limitation, any amounts owed for Services or for any Product that is damaged, altered, or not returned).
4. Changes to Services
Subject to applicable law, we have the right to change our Products, Services, rates or charges, at any time with or without notice. We also may rearrange, delete, add to or otherwise change features or offerings contained in the Services. If we do give you notice, it may be provided on your monthly bill, as a bill insert, in a newspaper or other communication permitted under applicable law. If you find a change in the Service(s) unacceptable, you have the right to cancel your Service(s). However, if you continue to receive Service(s) after the change, this will constitute your acceptance of the change. Please take the time to read any notices of changes to the Service(s). We are not liable for failure to deliver any Services except as provided in Section 11,v.
5. Access to your Premises
You agree to allow us and our agents the right, to enter at reasonable times, and on reasonable notice, your property upon which the Products and/or Services will be provided (the “Premises”), for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing and removing the Products and/or Services. You warrant that you are either the owner of the Premises or that you have the authority to give us access to the Premises. If you are not the owner of the Premises, you are responsible for obtaining any necessary approval from the owner to allow us and our agents into the Premises to perform the activities specified above. In addition, you agree to supply us or our agent, if we ask, the owner’s name, address and phone number and/or evidence that the owner has authorised you to grant access to us and our agents to the Premises.
6. Products and Software
i. Products and Software.
Title to Products purchased by you from climote will pass to you on payment of the Product purchase fee. You are also granted a revocable licence to use the Software provided by climote in connection with the Products (see 15 iv). You agree to use Products and Software only for the Services pursuant to this Agreement. We may change the climote Software at our discretion at any time the Services are active or following the termination of your Service(s).
ii. Installation and Maintenance.
The Products will be installed in the Premises. You agree to allow us access to the Premises for the purpose of installing and/or maintaining the Products. At your request, we may relocate the Products in the Premises for an additional charge, at a time agreeable to you and to us. YOU UNDERSTAND AND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE THE PRODUCTS OR SERVICES AT A LOCATION OTHER THAN THE PREMISES, THE SERVICES MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY. You agree that you will not allow anyone other than climote employees or agents to service the Products.
iii. Customer Equipment.
climote has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that you elect to use in connection with the Products and/or Services (the “Customer Equipment”.) You can find climote’s current minimum technical and other requirements for hardware required to use the Services at our website. These requirements may be located at an alternative site if we so notify you. To use the Services, you will need one or more of a PC, Smartphone or Mobile Phone that meets our specifications. Whether a device is owned by you or us, we have the unrestricted right, but not the obligation, to upgrade or change the firmware in these devices remotely or on the Premises at any time that we determine it necessary or desirable in order to provide Services to you in accordance with our specifications and requirements.
b. Non-Recommended Configurations:
Customer Equipment that does not meet climote’s minimum technical or other specifications constitutes a “Non-Recommended Configuration.” NEITHER CLIMOTE NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE OR USE THE SERVICES. YOU ACKNOWLEDGE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE CUSTOMER EQUIPMENT TO FAIL TO OPERATE OR CAUSE DAMAGE TO CUSTOMER EQUIPMENT, YOU, YOUR PREMISES OR THE PRODUCTS. NEITHER CLIMOTE NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. climote reserves the right to deny you customer support for the Services and/or terminate Service(s) if you use a Non-Recommended Configuration.
c. No Unauthorised Devices or Tampering:
You agree not to attach any unauthorised device to the Products and/or Services. If you make any unauthorised connection or modification to the Products and/or Services, we may terminate your Service and recover such damages as may result from your actions. Unless expressly authorised by us, you agree not to install anything to intercept or receive any of the Services offered to you or to assist any person in intercepting or receiving any of the Services offered to you. You also agree that you will not attach anything to the Products, whether installed by you or us, which singly or together impairs the integrity of our Services.
7. Use Of Services
You agree that the Products and/or Services will be used only by you and the members of your immediate household living with you at the same address and only for personal, residential, non-commercial purposes, unless otherwise specifically authorised by us in writing. You will not use the Products at any time at an address other than the Premises without our prior written authorisation. You agree and represent that you will not resell or permit another to resell the Services in whole or in part. You will not use or permit another to use the Products and/or Services, directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any posted climote policy applicable to the Services.
You also agree that climote may impose reasonable rules and regulations regarding the use of its Services. Such rules and regulations are called Fair Usage Policies (FUPs). The FUPs are not exhaustive and climote reserves the right to modify the FUPs at any time. climote will endeavour to give you two weeks’ notification of any modification of the FUPs. By using the Services and thereby accepting the terms and conditions, you agree to abide by the FUPs as modified from time to time. Any violation of the FUPs may result in the suspension or termination of your account or such other action as climote deems appropriate.
Use of the Products and/or Services for transmission, communications or storage of any information, data or material in violation of any European or Irish regulation or law is prohibited.
You acknowledge that you are accepting this Agreement on behalf of all persons who use the Products and/or Services and that you shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable climote policies including, but not limited to, acceptable use and privacy policies. You further acknowledge and agree that you shall be solely responsible for any transactions, including, without limitation, purchases made through or in connection with the Services. You agree to indemnify, defend and hold harmless climote and its affiliates, suppliers, and agents against all claims and expenses (including reasonable legal fees) arising out of the use of the Products and/or Services and/or the Customer Equipment or the breach of this Agreement or any of the applicable climote policies by you or any other user.
This Agreement and the Services furnished hereunder may not be assigned by you. You agree to notify us immediately of any changes of ownership or occupancy of the Premises. We may freely assign our rights and obligations under this Agreement with or without notice to you.
9. Termination Of This Agreement
This Agreement will be in effect from the time that charges commence until (A) it is terminated as provided for by this Agreement or by any addendum to this Agreement or (B) it is replaced by a revised Agreement. Unless otherwise specified by climote, Service charges begin the day you activate the Service.
ii. Termination by You.
Unless you have signed a minimum term addendum, you may terminate this Agreement for any reason at any time by notifying climote in one of three ways: (A) send a written notice to the postal address of climote; (B) send an electronic notice to the e-mail address specified on www.climote.com; or (C) call our customer service line during normal business hours. Subject to applicable law or the terms of any agreements with governmental authorities, all applicable fees and charges will accrue until this Agreement has terminated and the Services have been disconnected. We will refund any outstanding prepaid service fees charged for Services after the date of termination (less any outstanding amounts due climote for the Services, affiliate services, or other applicable fees and charges).
iii. Suspension and Termination by climote.
Under the conditions listed below, climote reserves the right, subject to applicable law, to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to any authorised users (e.g., email or voicemail). climote may take these actions if it: (A) determines that such use or information does not conform with the requirements set forth in this Agreement, (B) determines that such use or information interferes with climote ability to provide the Services to you or others, (C) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use, or (iv) reasonably believes that such use or information interferes with or endangers the health and/or safety of our personnel or third parties. climote’s action or inaction under this Section 9 shall not constitute review or approval of your or any other users’ use of the Services or information transmitted by or to you or users.
iv. Your Obligations upon Termination.
You agree that upon termination of this Agreement you will do the following:
a. You will immediately cease all use of the Services;
b. You will pay in full for your use of the Services up to the date that this Agreement has been terminated and the Services are disconnected; and
10. Limited Warranty
UNLESS SPECIFICALLY IDENTIFIED FOR AN INDIVIDUAL PRODUCT THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER CLIMOTE NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT THE PRODUCTS OR THE SERVICES WILL DELIVER SPECIFIC RESULTS OR MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER CLIMOTE NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
11. Limitation Of climote’s Liability
The limitations of liability set forth in this Section 11 apply to any acts, omissions, and negligence of climote and its underlying third-party service providers, agents and suppliers (and their respective officers, employees, agents, contractors or representatives) which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine.
ii. Customer Equipment.
CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, SELF-INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, AND REMOVAL OF CLIMOTE EQUIPMENT AND THE SERVICES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER CLIMOTE NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY CLIMOTE, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS, WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF €500. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY. YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE OPENED, ACCESSED OR USED EITHER BY YOU OR BY US OR OUR AGENTS, IN CONNECTION WITH THE INSTALLATION OR REPAIR OF THE PRODUCTS OR SERVICES. THE OPENING, ACCESSING OR USE OF YOUR COMPUTER OR OTHER DEVICES USED IN CONNECTION WITH YOUR COMPUTER MAY VOID WARRANTIES PROVIDED BY THE COMPUTER OR DEVICE MANUFACTURER OR OTHER PARTIES RELATING TO THE COMPUTER’S OR DEVICE’S HARDWARE OR SOFTWARE. NEITHER CLIMOTE NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
iii. Other Services or Equipment.
BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST CLIMOTE FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE PRODUCTS OR THE SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 9.
Software. When you use certain features of the Services, such as online features (where available), you may require special software, applications, and/or access to the Internet. climote makes no representation or warranty that any software or application installed on Customer Equipment, downloaded from the Service, or available through the Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the installation or operation of the Services if a virus or other harmful feature or software is found to be present on your Customer Equipment. We are not required to provide you with any assistance in removal of viruses. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your Customer Equipment. NEITHER CLIMOTE NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT.
iv. In addition
As part of the installation process for the software and other components of the Service, system files on your Customer Equipment may be modified. climote does not represent, warrant or covenant that these modifications will not disrupt the normal operations of any Customer Equipment including without limitation your computer(s), or cause the loss of files. climote does not represent, warrant, or covenant that the installation of the special software or applications or access to our Web portal(s) will not cause the loss of files or disrupt the normal operations of any Customer Equipment, including but not limited to your computer(s). FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER CLIMOTE NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
v. Disruption of Service.
The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High Risk Activities”). You expressly assume the risks of any damages resulting from High Risk Activities. We shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the Premises; failure of any internet connection; failure of utility facilities; strike; labour dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within sixty (60) days of such interruption, to a pro rata credit for any Service interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Unless specifically otherwise provided by law, such credit shall not exceed the fixed monthly charges for the month of such Service interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AS AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM WHATEVER CAUSE, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR WAGES. Any credits provided by climote are at our sole discretion and in no event shall constitute or be construed as a course of conduct by climote.
vi. Third Parties.
Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Services, including without limitation their services, equipment, infrastructure or content. climote is not responsible for the performance (or non-performance) of third-party services, equipment, infrastructure or content, whether or not they constitute components of the Services. climote shall not be bound by any undertaking, representation or warranty made by an agent or employee of climote or of our underlying third-party providers and suppliers in connection with the installation, maintenance or provision of the Services, if that undertaking, representation or warranty is inconsistent with the terms of this Agreement. In addition, you understand that you will have access to the services and content of third parties through the Service(s), including without limitation that of content providers (whether or not accessible directly from the Service). climote is not responsible for any services, equipment, infrastructure and content that are not provided by us (even if they are components of the Service), and we shall have no liability with respect to such services, equipment, infrastructure and content. You should address questions or concerns relating to such services, equipment, infrastructure and content to the creators of such services, equipment, infrastructure and content. We do not endorse or warrant any third-party products, services or content that are distributed or advertised over the Services.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER CLIMOTE NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS: (i) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (a) YOUR RELIANCE ON OR USE OF THE PRODUCTS OR SERVICES OR (b) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE SERVICES (INCLUDING BUT NOT LIMITED TO ANY MISTAKES, OMISSIONS, INTERRUPTIONS, COMPUTER OR OTHER HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION OR FAILURE OF PERFORMANCE OF THE SERVICE, THE PRODUCTS OR THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF INFORMATION OR DATA); OR (ii) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE PRODUCTS OR THE SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
viii. Customer’s Sole Remedies.
Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. The liability of climote and its employee, affiliates, suppliers, agents and contractors is limited to the maximum extent permitted by law.
ix. Survival of Limitations.
All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
12. Indemnification And Liability Of Customer
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS CLIMOTE AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE SOLICITOR’S FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF (A) YOUR USE OF THE PRODUCTS OR SERVICES; (B) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE OR ANY UNAUTHORISED APPARATUS OR SYSTEM; AND (C) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.
13. Binding Arbitration
If you have a Dispute (as defined below) with climote that cannot be resolved through an informal dispute resolution process, you or climote may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
As used in this Provision, the term “Dispute” means any dispute, claim or controversy between you and climote regarding any aspect of your relationship with climote that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the class action waiver clause provided in paragraph v.b). “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Provision, “climote” means climote Ltd., its officers, directors, employees and agents, and all entities using the brand name “climote”, including, its employees, authorised agents, and its parents, subsidiaries and affiliated companies. As used in this Provision, the term “Arbitration Provision” means all the terms of this Section 13.
iii. Right to Opt Out.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY CLIMOTE IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT BY SENDING AN EMAIL TO INFO@CLIMOTE.IE, OR BY MAIL TO CLIMOTE LTD. FINNABAIR INDUSTRIAL PARK, DUNDALK, CO. LOUTH, IRELAND, ATTN: LEGAL DEPARTMENT/ ARBITRATION. YOUR WRITTEN NOTIFICATION TO CLIMOTE MUST INCLUDE YOUR NAME, ADDRESS AND CLIMOTE ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH CLIMOTE THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH CLIMOTE OR THE DELIVERY OF SERVICES TO YOU BY CLIMOTE. IF YOU HAVE PREVIOUSLY NOTIFIED CLIMOTE OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
iv. Initiation of Arbitration Proceeding/Selection of Arbitrator.
If you or climote elect to resolve your Dispute with climote through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may select from the following organisations, which will apply the appropriate rules for consumer claims to arbitrate the Dispute:
a. The Chartered Institute of Arbitrators in Ireland
b. The Incorporated Law Society of Ireland
a. YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (EXCEPT FOR BILLING DISPUTES WHICH ARE SUBJECT TO SECTION 2 OF THE AGREEMENT), OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
b. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE SOLICITOR GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
c. ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH CLIMOTE UNLESS THE STATUTE UNDER WHICH THEY ARE ASSERTING A CLAIM PROVIDES OTHERWISE.
vi. Location of Arbitration.
The arbitration will take place in Ireland and this Agreement in its entirety shall be governed by Irish law.
vii. Payment of Arbitration Fees and Costs.
CLIMOTE WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST GIVEN PRIOR TO THE COMMENCEMENT OF THE ARBITRATION. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, SOLICITORS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN CLIMOTE’S FAVOR, YOU SHALL REIMBURSE CLIMOTE FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE CLIMOTE FOR ANY OF THE FEES AND COSTS ADVANCED BY CLIMOTE.
If any clause within this Arbitration Provision (other than the class action waiver clause identified in paragraph v.b) is found to be illegal or unenforceable, that clause will be severed from the Arbitration Provision, and the remainder of the Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and a court will decide the dispute.
In the event that this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and climote have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
ix. Exclusions from Arbitration.
YOU AND CLIMOTE AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY CLIMOTE THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORISED USE OR RECEIPT OF SERVICE.
x. Continuation. This Arbitration Provision shall survive the termination of your service with climote.
14. Customer Privacy Notice And Security
i. Electronic (including wired and wireless) communications through the Services may not be encrypted. You acknowledge that there is a risk that data, including email, electronic and wireless communications and personal data, may be accessed by unauthorised third parties when communicated between you and climote or between you and other parties.
iii. To the extent that climote is expressly required to do so by applicable law, we will provide notice to you of a breach of the security of certain personally identifiable information about you. It is climote information security policy to provide such notice to you in the manner set forth in Section 16.
i. Entire Agreement.
This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and they replace any and all prior written or verbal agreements. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. If climote fails to insist upon or enforce strict performance of any provision of this Agreement, it shall not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.
ii. Additional Representations and Warranties.
In addition to representations and warranties you make elsewhere in this Agreement, you also represent and warrant that:
a. Age: You are at least 18 years of age.
b. Customer Information: During the term of this Agreement, you have provided and will provide to climote information that is accurate, complete and current, including without limitation your legal name, address, telephone number(s), email address and payment data (including without limitation information provided when authorising recurring payments). You agree to notify us promptly, in accordance with the terms of this Agreement, if there is any change in the information that you have provided to us. If you fail to provide and maintain accurate information, you will breach this Agreement.
iii. Information Provided to Third Parties.
climote is not responsible for any information provided by you to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy notice for the Services. You assume all privacy, security and other risks associated with providing personally identifiable information to third parties via the Services. For a description of the privacy protections associated with providing information to third parties, you should refer to the privacy policies, if any, provided by those third parties.
iv. Revocable License.
The Products and Services, including but not limited to any firmware or software embedded in the Products or used to provide the Services, are protected by trademark, copyright, patent and/or other intellectual property laws and international treaty provisions. You are granted a revocable license to use such firmware and software in object code form (without making any modification thereto) strictly in accordance with this Agreement. You acknowledge and understand that you are not granted any other license to use the firmware or software embedded in the Products or used to provide the Services. You expressly agree that you will use the Products exclusively in connection with the Services. You shall not take any action nor allow anyone else to take any action that will reverse compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
v. Protection of climote Information and Marks.
All Service information, documents, and materials on our Web sites are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All Web sites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of climote and its affiliates are and shall remain the exclusive property of climote. Nothing in this Agreement shall grant you the right or license to use any of the marks.
vi. Export Laws.
You expressly agree to comply with all applicable export and re-export laws, including but not limited to the EU Export Regulations. You further expressly agree not to use the Services in any way that violates any provision of these export and re-export laws or their implementing regulations.
vii. Retention of Rights.
Nothing contained in this Agreement shall be construed to limit climote’s rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, climote and its suppliers reserve the right to delete all your data, files, electronic messages or other Customer information that is stored on climote’s or its suppliers’ servers or systems. We shall have no liability whatsoever as the result of the loss of any such data.
16. Notice Method For Changes To This Agreement
You agree to accept all communications from us regarding use of the Services at the addresses you provide during Registration. Please promptly update any changes to your registration information by using the “Update User Information” link associated with the Service. climote is entitled to rely on the email address and postal address that you last provided to us. You agree to waive all claims resulting from failure to receive communications because of changes in your email or postal address. From time to time we would like to send you information about climote products and services. If you register for a Service, you are granting climote permission to communicate with you by email. You can opt not to receive such information from us in the future by following the instructions in any email that we send to you.
You agree to be bound by any affirmation, assent or agreement you transmit through the Services you access by computer or other electronic device, including internet, telephonic and wireless devices, including but not limited to any consent you give to receive communications from us solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field with your mouse, keystroke or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.