Terms of Service
Revised effective July 31, 2020
Conservation Labs, Inc. or any applicable affiliate (“Conservation Labs “) is willing to provide to you, whether directly or through an authorized channel partner, distributor or reseller (each a “Distributor”) Conservation Labs’ hardware products (“Products”) and certain software subscription services (“Subscription Services”) and other services (collectively, “Services”) for use in conjunction with one or more Products in accordance with and subject to your acceptance of the Agreement (defined below), which includes these Terms of Service for the Servicesavailable at https://ConservationLabs.com/tos, as amended from time to time (“Terms”). Conservation Labs’ Services may include, among other things: one or more Conservation Labs websites accessed at watermonitorapp.com or subdomains (each, a “Site”) for you and other authorized persons or entities to create or use a user Account; services accessible through the Sites (“Web Apps”); software (in object code only) that may be downloaded to your smartphone or tablet to access Services (“Mobile Apps”); the Subscription Services that can be accessed using the Web Apps and Mobile Apps; and Conservation Labs’ Customer Support; with all such Services for use in conjunction with Conservation Labs’ hardware Products, and other possible services, uses, connections, features, and options. Some Conservation Labs Products and Services may be used together or in ways that may integrate with products and services from third parties, including but not limited to Distributors.
These Terms, together with your Product and/or subscription order (placed either with Conservation Labs or its Distributor), as applicable, the invoices of Conservation Labs or its Distributor, as applicable, your registration for the Subscription Services, and the policies and documents identified below, including but not limited to Conservation Labs’ Privacy Policy available at https://ConservationLabs.com/privacy, as amended from time to time (“Privacy Policy”) and Conservation Labs End-User License Agreement available at https://ConservationLabs.com/eula, as amended from time to time (“EULA”) for Products, comprise the entire Agreement between you and Conservation Labs with respect to its subject matter (“Agreement”). No contrary or additional terms in any order (including any purchase order) by you shall be part of the Agreement or otherwise be binding on Conservation Labs or its Distributor. Subject to the Agreement, Conservation Labs or its Distributor, as applicable, shall provide the Products and Services specified in your order.
YOU ARE CONCLUDING A LEGAL BINDING AGREEMENT. IF YOU HAVE EITHER PURCHASED A PRODUCT (WHETHER DIRECTLY FROM CONSERVATION LABS OR THROUGH A DISTRIBUTOR) OR AGREED TO HAVE A PRODUCT INSTALLED IN YOUR RESIDENCE OR PROPERTY, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD THE AGREEMENT, AGREE TO BE BOUND BY ALL OF ITS PROVISIONS, AND CONSENT TO THE USE OF ELECTRONIC SIGNATURES. IF YOU CREATE AN ACCOUNT AS AN OWNER, REGISTER TO USE ANY SERVICES, OR LOG IN OR OTHERWISE ACCESS TO USE OR USE ANY PRODUCTS OR SERVICES (INCLUDING THE SITES), YOU ARE AN AUTHORIZED USER FOR PURPOSES OF THESE TERMS (AS FURTHER DEFINED BELOW), AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE AGREEMENT, AGREE TO BE BOUND BY ALL OF ITS PROVISIONS, AND CONSENT TO THE USE OF ELECTRONIC SIGNATURES. PLEASE READ THESE TERMS CAREFULLY. THEY REQUIRE THE USE OF BINDING ARBITRATION TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS.
If the individual indicating assent to the Agreement is doing so on behalf of an organization, all references to “you” or “your” in these Terms shall mean the legal entity represented by such individual. (Without limiting the generality of the foregoing, the term “you” shall also have the more specific meanings set forth below.) Such individual represents and warrants that he or she is fully authorized to enter into the agreement on your behalf.
Only Owners may subscribe to the Subscription Services (either from Conservation Labs or a Distributor) by creating an Account with Conservation Labs or its Distributor, as applicable, in accordance with Section 2(a), below. You are an “Authorized User” if the Owner has authorized you to use the Owner’s Products and Services and you register as a user by providing the information required on a Site for Authorized Users. You are an “End User” if you are the person or entity who owns, leases, manages and controls, or otherwise has authority over the real property in or as to which one or more Products are installed or whose water usage the Products are monitoring. You are a “Service User” if you have a channel partner, distribution or other agreement with Conservation Labs that provides Subscription Services to you with respect to Products sold by or through or otherwise related to the services of Authorized Users, End Users, and/or Service Users. In all cases, these Terms govern your access to and use of the Services.
As an Owner or End User, you represent and warrant that you either own or lease or have the authority to manage or control the real property on which the Product is being installed, or have the authority and consent from such owner or controller to install the Product. As an Owner, Authorized User or Service User, you represent and warrant that you: (i) either own or have the authority and consent of the owner of the devices on which the Web Apps or Mobile Apps are being installed to install and use such devices; and (ii) either (a) consent to the use of the Services as a Data Subject (defined in Section 3(h), below) because you are the Owner of the real property as to which the Services will monitor or be applied, which Services may include, without limitation, the monitoring of water usage and the collection of Personal Data (defined in Section 3(h), below) from persons using such real property, or (b) have the authority from and consent of all persons who own or have the right to exclusively possess the real property as to which the Services will monitor or be applied, and the consent of all other persons whose consent to install the Product and use the Services may otherwise be required. Conservation Labs is willing to provide Products and Services to you only upon the condition that you accept all of the Terms. If you do not agree with or breach any provision in these terms, including but not limited to any of the foregoing warranties, you must disconnect your Products from your Account and cease accessing or using the Services.
These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under these Terms will not apply to the extent prohibited by applicable U.S. or other applicable local, state/provincial, national, or international law, rule, or regulation (“Law”). Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
AS DESCRIBED IN SECTION 3(b), BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. IF YOU DO NOT AGREE TO ANY OF THE FOREGOING, YOU MAY NOT USE THE SERVICES.
Conservation Labs reserves the right to make changes to these Terms, so please review them often. We will post on this page notices that these Terms have been modified. The changes will be effective immediately upon the posting of the revised Terms. You should therefore ensure that you have read and agree with our most recent Terms whenever you use the Services. By continuing to use the Services after we post revised Terms, you are agreeing to be bound by the revised Terms.
1. Overview, Eligibility, Customer Service, Term and Termination
(a) Overview of Terms and Relation to Other Agreements. These Terms apply to all Products, Services and Mobile Apps procured or otherwise received from Conservation Labs, whether directly or through a Distributor. The software embedded in each Product (and any updates thereto) (“Product Software”) is licensed and governed by the EULA. Certain features of the Services may be subject to additional guidelines, terms, policies, or rules, which will be posted on the applicable Sites in connection with such features. All additional guidelines, terms, policies, and rules, including the Conservation Labs Privacy Policy, are incorporated by reference into these Terms as part of the Agreement, and you are agreeing to accept and abide by them when you purchase Products or Services from Conservation Labs, register your Account with Conservation Labs or a Distributor, use a Product or Service, or authorize Authorized Users to use a Subscription Service.
(b) Eligibility. Only individuals age 18+ who can form a binding contract with Conservation Labs are permitted to subscribe to or register for Subscription Services or be an End User. The Services are not available to any person previously prohibited from using the Services by Conservation Labs. You may not use any Services if your use of the Services would violate any Law, including, without limitation, any applicable export control law or regulation.
(c) Customer Service. If you have any questions or concerns regarding the Products, the Services, or these Terms, please contact Conservation Labs by email at support@conservationlabs.com.
2. Accounts
(a) Your Account. To use the Services, whether as an Owner, Authorized User or Service User, you must first register for a user account on our Site (“Account”), provide certain information about yourself as required in the registration form, and agree to these Terms. As part of the registration process, each Owner must identify an administrative user name and password for your Account. Each Authorized User (including Owners for their own Accounts), and Service User must provide a unique username and password. You represent and warrant that: (i) all required registration information you submit is truthful and accurate; and (ii) you will promptly update such information to maintain its accuracy. The type of Account you have or may use, and the Services to which you are entitled, will depend on the type of user you are and the type of subscription you or the applicable Owner or other user has purchased.
(b) Account Security. As between you and Conservation Labs, you are solely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Account, and to maintain your password securely to prevent others from gaining access without your permission. Conservation Labs reserves the right to refuse registration of, or cancel passwords it deems inappropriate. You agree to immediately notify Conservation Labs of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Conservation Labs is not liable for any loss or damage arising from your failure to comply with the above requirements or any other unauthorized use.
(c) Owners and Users. Owners may authorize others to use the Owner’s Account by registering as an Authorized User in accordance with Section 2(a) and agree to these Terms. Depending on the type of Account, Owners and Authorized Users may have the ability to use the Services and monitor and control the Products, and to view information (including Personal Data) and content across all of an Owner’s Products and Services. Service Users may have the ability to access and view such information and content but not control the Products. Authorized Users are responsible for their own actions in connection with the Products and Services, but each Owner agrees to be fully responsible vis-à-vis Conservation Labs for all actions taken by its Authorized Users relating to the Owner’s Products, Services and Account. If you are an Owner who invites or enables an Authorized User, you acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Products and Services set out above. As a result, if you are an Owner, you should authorize only those individuals that you trust to access your Account, Products, and Services.
3. Access to Services
(a) Access and Use. Subject and pursuant to these Terms, including the payment of the applicable subscription fees, Conservation Labs grants to you a non-transferable, non-exclusive, revocable, limited right (without the right to sublicense except only as expressly stated in these Terms) to access and use the Services by, if available (i) using the Web Apps in connection with, and solely for the purpose of, controlling and monitoring the Products you own or are authorized to control and monitor, or otherwise accessing a Service expressly provided by Conservation Labs for your use (the “Permitted Purpose”), and/or (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone), and solely for the Permitted Purpose.
(b) Automatic Software Updates. Conservation Labs may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services and the Product. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and the Product and you agree to promptly install any non-automatic Updates that Conservation Labs may provide. Your continued use of the Services and the Product is your agreement: (i) to these Terms with respect to the updated Services, and (ii) to the EULA which will continue to apply to any updated Product Software.
(c) Interface to Third-Party Products and Services. From time to time, Conservation Labs may provide the opportunity for you to interface with one or more third-party products and services through and using the Services (“Third Party Products and Services”). In some cases, you decide whether and with which Third-Party Products and Services you want to interface. Your explicit consent and authorization is required for this interface, and is revocable by you at any time. (If the Services are provided to you by a Distributor through the Distributor’s Third Party Products and Services, your consent is subject to your direct agreement with that Distributor.) Once your consent is given for a particular Third-Party Product and Service, you agree that Conservation Labs may exchange information and data regarding you and your Products, including your Personal Data, in order to enable the interface you have authorized. Once this information is shared with the particular Third-Party Product and Service, its use will be governed by the third party’s privacy policy and not by Conservation Labs’ Privacy Policy or documentation. (Each Service User’s use of the Services, however, shall be subject to Conservation Labs’ Privacy Policy.) You acknowledge and agree that Conservation Labs makes no representation or warranty about the safety of any Third-Party Products or Services, and that, with respect to Conservation Labs, your use of any Third Party Products and Services is “AS IS” and at your sole risk. You acknowledge and agree that Conservation Labs makes no representation or warranty about the operation, reliability, or safety of any Third Party Products or Services. Accordingly, Conservation Labs is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to your property), or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the third party with any questions about their Third Party Products and Services.
(d) Content. Certain materials may be displayed or performed on the Sites, including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (collectively, “Content”). You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Conservation Labs reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence) or for no reason at all.
(e) User Submissions. The Content may include information that you and other users provide us in the course of using the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Subject to Section 4, below, and other applicable provisions of these Terms, you may also post feedback, comments, questions, or other information on the Sites. Some User Submissions may be visible to others. For example, the Service may allow you to upload, post, or otherwise share photographic content. You are solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using or in connection with the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it. You hereby grant to Conservation Labs an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, and transferable license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Submissions, including all associated IP, and to grant sublicenses of the foregoing rights, for the purposes of including your User Submissions on the Service, and otherwise in connection with the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. For clarity, the foregoing license grant to Conservation Labs does not affect your ownership of or right to grant additional (other than exclusive) licenses to the material in your User Submissions, unless otherwise agreed in writing.
(f) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions. You agree not to: (i) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Product or the Services; (iii) access the Product and Services in order to build a similar or competitive service; (iv) use any Product or Service in a service bureau or time sharing environment; (v) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, Product Data (defined in Section 6(c), below), the Services, any Product, the Product Software, or any other system, device or property; (vi) interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) access (or attempt to access) any of the Services by means other than through the interface that is provided by Conservation Labs; or (viii) remove, obscure or alter any proprietary rights notices or legends (including copyrights and trademark notices and confidentiality legends) which may be contained in or displayed in connection with the Products or Services. Except as expressly stated herein, no part of the Product or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
(g) Open Source. Certain items of independent, third party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
(h) Personal Data. For purposes of this Agreement, “Data Subject” means an individual who (1) uses the Products or Services provided by Conservation Labs and/or (2) about which information is collected or generated as a part of the Products or Services; and “Personal Data,” in respect of each Data Subject means any information relating to an identified or identifiable natural person; and an identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, geographic, cultural or social identity of that natural person. Such information may be collected by Conservation Labs’ Products and Services, the use of web-site cookies and IP addresses, and other means.
(i) Privacy. Please review the Privacy Policy for Conservation Labs Sites, Products and Services. The Privacy Policy describes practices regarding the information that Conservation Labs may collect from users of the Products and Services, including any Content or User Submissions.
(j) Security. Conservation Labs cares about the integrity and security of your Personal Data. Conservation Labs, however, does not represent, warrant, guaranty or covenant that no unauthorized third parties will defeat our security measures or use your Personal Data for improper purposes. You acknowledge that your Personal Data is being provided or may be accessed at your own risk.
(k) Modification. Conservation Labs reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof with or without notice. You agree that Conservation Labs will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
(l) Access Outside Certain Countries. Although the Sites are accessible through the internet throughout the world, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. Some or all of the features of the Sites may not work or be appropriate for use in other countries. If you choose to access the Sites from outside the United States, you do so on your own initiative and you are solely responsible for complying with all applicable Laws in such country, and you agree to defend, indemnify and hold harmless Conservation Labs from and against any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) (collectively, “Claims”) arising from or relating to any breach by you of this Section 3(l). To the extent permissible by law, Conservation Labs accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Sites, Products or Services outside the United States. In any event, you will be bound by these Terms wherever you access or use the Sites or Services. Conservation Labs expressly prohibits the transfer of Products or Services to, or use of Products or Services by, any Office of Foreign Asset Control (“OFAC”) “Specially Designated National” or in any OFAC sanctioned country.
(m) Export/Import Control. The Products, Services, and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Products, Product Software and related technology, as may be required. You will defend, indemnify and hold harmless Conservation Labs from any and all Claims arising from or relating to any breach by you of this section.
4. Agreed Usage and Limitations of Conservation Labs Services
(a) System Requirements. The Services will not be accessible without: (i) a working Wi-Fi network in your property that is positioned to communicate reliably with the Products; (ii) an Account for any such Products; (iii) mobile clients such as a supported phone or tablet (required for some functionality); (iv) always-on broadband Internet access in your property with bandwidth sufficient to support the Products you use; and (v) other system elements that may be specified by Conservation Labs. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
(b) Intended Use of Conservation Labs Services. The Services are intended to be accessed and used for non-time-critical information and control of Conservation Labs Products. While we aim for the Services to be highly reliable and available, the Services may be subject to sporadic interruptions and failures for a variety of reasons beyond Conservation Labs’ control, including Wi-Fi intermittency, service provider uptime, mobile notifications and carriers, among others. You acknowledge these limitations and agree that Conservation Labs is not responsible for any damages allegedly caused by the failure or delay of the Services. Conservation Labs makes no warranty whatsoever with respect to the accuracy of the data.
(c) No Life-Safety or Critical Uses of the Services. You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services are not certified for emergency response. Conservation Labs makes no warranty or representation that use of the Products or Services with any third-party product or service will affect or increase any level of safety or limit damages to your property. YOU UNDERSTAND THAT THE PRODUCTS AND SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. CONSERVATION LABS WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR PROPERTY IN THE EVENT OF AN EMERGENCY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT CONSERVATION LABS IS NOT LIABLE FOR ANY DAMAGES TO YOUR PROPERTY, ITS CONTENTS OR ANY PERSONS OR PETS. In addition, the Conservation Labs Customer Care and Support contacts cannot be considered a lifesaving solution for people at risk in the property, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services. You expressly acknowledge and agree that Conservation Labs is not liable for your, or any third party or emergency responders’, actions or failure to act in response to information acquired from the Products or Services. You acknowledge that it is your responsibility to educate yourself about how to respond to an emergency and the information provided by the Products and Services, and to respond according to the specifics of your situation.
(d) Reliability of Notifications. You acknowledge that the Services, including remote access and mobile notifications, are not intended to be 100% reliable or 100% available. We cannot and do not guarantee that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES OR PROTECTION OF PROPERTY. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR CONSERVATION LABS PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. The information provided by Conservation Labs on what to do in an emergency is based on authoritative safety sources, but there is no way for Conservation Labs to provide specific information relating to a situation in your property or elsewhere.
(e) Temporary Suspension. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Conservation Labs does not offer any specific uptime guarantee or Service Level Agreement for the Services.
(f) Water Savings and other Benefits. Unless explicitly promising a “guarantee,” Conservation Labs does not guarantee or promise any specific level of water savings, accuracy of water data or other Product Data, insurance discounts, rebates, or other monetary benefit from the use of the Products or Services or any feature of them. Actual water savings, water usage and monetary benefits vary with factors beyond Conservation Labs’ control or knowledge. From time to time, Conservation Labs may use the Services to provide you with information that is unique to you and/or your water usage and suggests an opportunity to save money if you adopt suggestions or features of the Product or Services. We do this to highlight an opportunity based on our analysis and information about you and your household. You acknowledge that these promotions are not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Conservation Labs if your savings differ. You acknowledge that use of the Products or Services or any feature of them alone will not provide any monetary or other benefit to you. You expressly acknowledge and agree that use of the Products or Services or any feature of them is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
(g) Product Data. The Services provide you Content and other information (“Product Data”) regarding the Products in your location and their connection with other products and services. All Product Data is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Data through the Services is not a substitute for direct access of the information in the property. You expressly acknowledge that Conservation Labs is not liable for your or any other third party’s response, or lack thereof, to the Product Data or lack thereof.
(h) Your Warranty Regarding Your Content and Use of Services. You warrant, represent and agree that you will not contribute any Content 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) impersonates any person or entity, including without limitation any employee or representative of Conservation Labs; (v) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of your Conservation Labs Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
(i) Responsibility for Content. All information publicly posted or privately transmitted through the Services is the sole responsibility of the Person from which (or from whose account) such Content originated and Conservation Labs will not be liable for any errors or omissions in any Content. Conservation Labs cannot guarantee the identity of any other users with whom you may interact in the course of using the Services. Additionally, we cannot guarantee the authenticity of any data that Owners, users or merchants may provide about themselves. 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. We cannot control and have no duty to take any action regarding how you or others may interpret and use the Content or what actions you or others may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
(j) Data Protection and Privacy Laws. Data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Products and Services. You agree that you (and not Conservation Labs) are responsible for ensuring that you comply with any applicable Law when you use the Products and Services.
5. Limitations of Conservation Labs Services Due to Third Parties
(a) General. Conservation Labs Services may rely on or interoperate with third party products and services. These third party products and services are beyond Conservation Labs’ control, but their operation may impact or be impacted by the use and reliability of the Conservation Labs Services. You acknowledge and agree that: (i) the use and availability of the Services may be dependent on third party product vendors and service providers, (ii) these third party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Conservation Labs Services operate, and (iii) Conservation Labs is not responsible for damages and losses due to the operation or non-operation of these third party products and services.
(b) Third Party Service Providers Used By Conservation Labs. You acknowledge that Conservation Labs uses third party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization, and communication through Amazon Web Services, and mobile device notifications through mobile operating system vendors and mobile carriers. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES.
(c) Equipment, ISP, and Carrier. You acknowledge that the availability of the Services may be dependent on: (i) your computer, mobile device, property wiring, Wi-Fi network, or other local communication protocol connection, and other related equipment (“Equipment”), (ii) your Internet service provider (“ISP”), and (iii) your mobile device carrier (“Carrier”). You acknowledge that you are responsible for your Equipment meeting the specifications necessary for the Services and for properly maintaining your Equipment, and for maintaining the services provided by your ISP and Carrier and paying all fees charged by your ISP and Carrier needed for you to use the Services. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service, and other policies of your ISP and Carrier.
(d) App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third party websites from which you download the Mobile Apps, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between you and Conservation Labs and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with, and your license to use the Mobile Apps is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
(e) Third Party Website Links and Referrals. The Sites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”). Such Third Party Sites and Referred Vendors are not under our control. Conservation Labs provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third Party Sites or Referred Vendors. Your use of these Third Party Sites or Referred Vendors is at your own risk.
(f) Authorized Users. Conservation Labs is not responsible for any Authorized User’s behavior, or for any personal injury, death, property damage (including, without limitation, to your property), or other harm or losses arising from or relating to their use of the Services.
(g) Release Regarding Third Parties. Conservation Labs is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. Conservation Labs hereby disclaims and you hereby discharge, waive and release Conservation Labs and its licensors and suppliers from any past, present, and future Claims, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
(6) Ownership; Intellectual Property and Confidentiality
(a) Conservation Labs Property. You acknowledge and agree that, as between you and Conservation Labs, all intellectual property rights, including without limitation copyrights, patent rights, trademark rights, and trade secrets (collectively, “IP”), in the Product, Product Software, Product Data, and Services (i.e., the Sites, Web Apps, and Mobile Apps) are owned by Conservation Labs or its affiliates or our licensors. Your possession, access, and use of the Product, Product Software, and Services do not transfer to you or any third party any rights, title, or interest in or to such IP. Conservation Labs and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms. Except for the limited license and use rights granted hereunder, you agree not to assert any right, title, or interest in or to the Products or Services provided by Conservation Labs hereunder, or any other Conservation Labs IP.
You may only copy parts of the Services (including the Sites) on to your own computer for your own personal or internal business use. You may not use the content of the Services in any other public or commercial way nor may you copy or incorporate any of the content of the Services into any other work, including your own web site without the written consent of Conservation Labs, which it may withhold in its discretion. You must have a written license from us before you can post or redistribute any portion of the Product or the Services. Other than with respect to User Submissions, Conservation Labs retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
(b) Feedback. You may choose, and Conservation Labs may invite you, to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Ideas”). By submitting any Ideas, you agree that your submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Conservation Labs under any fiduciary or other obligation. Conservation Labs may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Conservation Labs does not waive any rights to use similar or related ideas previously known to Conservation Labs, developed by its employees, or obtained from other sources.
(c) Product Data. You hereby grant us with a nonexclusive, worldwide, paid-up, royalty-free, perpetual, irrevocable, sublicensable and transferable license and right to access, display, publish, reproduce, modify, aggregate, distribute, share, license, sell, or otherwise use any and all data either provided by you or entered on your behalf, or derived or collected through use of the Products and/or Services, or collected or generated by those Products and Services on your behalf, including, without limitation alarms, notifications, user preferences, settings, user actions, water usage data, user data, Personal Data, technical information about a device, system or application software, location data, registration data, telemetry data and other information from or about you which remains in Conservation Labs’ possession and control for further processing, including all related IP of any of the foregoing, for any and all purposes (collectively, “Product Data”). Furthermore, you understand that we retain the right to reformat, modify, create derivative works of, excerpt, aggregate, and translate any Product Data. For clarity, the foregoing license grant to Conservation Labs does not affect your ownership of, or right to grant additional (other than exclusive) licenses to, your water usage data or telemetry data, unless otherwise agreed in writing. You further acknowledge that monetizing Product Data is part of Conservation Labs’ business model, and helps allow Conservation Labs to provide the Conservation Labs Products and Services; as such, you consent to Conservation Labs using and monetizing your, and other, Product Data.
(d) You acknowledge and agree that the unauthorized disclosure or use of Confidential Information of Conservation Labs or its third party licensors, and all information and Services related thereto, would cause great injury and harm to the owner thereof. Therefore, you agree to take all appropriate action to ensure the confidentiality and security of such Confidential Information. Without limiting the generality of the foregoing, you agree to: (i) maintain the Confidential Information Conservation Labs or such licensors in the strictest confidence, including compliance with reasonable remote access security requirements; (ii) not to disclose, display, publish, transmit, or otherwise make available such Confidential Information or take the benefit thereof, in whole or in part, except in confidence to your respective Owners, End Users and Authorized Users, as the case may be, on a need-to-know basis; and (iii) except as expressly permitted hereunder, shall not copy, duplicate, replicate, transform, or reproduce such Confidential Information. Notwithstanding anything to the contrary in this Section, neither party shall be liable to the other for damages resulting from disclosure of any Confidential Information required by law, regulation or valid court order; provided prior written notice is provided to the other party sufficiently in advance of such required disclosure to allow the other party to respond and take reasonable and lawful action to avoid and/or minimize the degree of such disclosure or seek appropriate protective orders. For purposes of these Terms, “Confidential Information” means any non-public information, technical data, or know-how, including, without limitation, that which relates to: (i) research, product plans, products, pricing, services, customers, personnel, markets, software, software code, software documentation, developments, inventions, lists, trade secrets, data compilations, processes, designs, drawings, engineering, hardware configuration information, marketing or finances, which would be reasonably understood under the circumstances to be confidential or proprietary at the time of disclosure, and (ii) with respect to Conservation Labs, information concerning any Products or Services provided hereunder and/or materials resulting from Services, and any derivatives thereto, and the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how that is: (a) in the public domain or becomes available to the public and not as a result of the act or omission of the receiving party; (b) without restriction on disclosure, rightfully obtained by the receiving party from a third party; (c) without restriction on disclosure, lawfully in the possession of the receiving party at the time of disclosure; or (d) approved in writing by Conservation Labs.
(7) Indemnity
You agree to defend, indemnify and hold harmless Conservation Labs and its affiliates, and its and their officers, directors, shareholders, employees, representatives, agents, contractors, licensors, suppliers, successors and assigns from any and all Claims due to, in whole or in part, or arising out of: (i) your use or any of your Authorized User’s use of any Products or Services, (ii) your or your Authorized Users’ violation of these Terms, (iii) any User Submission or Feedback; or (iv) your or your Authorized Users’ violation of any Law or the rights of any third party. Conservation Labs reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to defend and indemnify Conservation Labs and you agree to cooperate with our defense of such Claims. You agree not to settle any such Claim without Conservation Labs’ prior written consent. Conservation Labs will use reasonable efforts to notify you of any such Claim upon becoming aware of it.
(8) WARRANTIES AND WARRANTY DISCLAIMERS
(a) Subscription Services. Conservation Labs warrants to Owner that during any applicable subscription term, the Subscription Services will perform substantially in accordance with the Documentation. The Owner’s exclusive remedy for a breach of the foregoing shall be for Conservation Labs to use commercially reasonable efforts to correct any Errors; provided, in the event Conservation Labs is unable to correct that nonconformity, the Owner shall have the right to terminate the remaining subscription term and receive a pro rata refund of any remaining prepaid Service Fees applicable to those Subscription Services.
(b) EXCEPT ONLY AS EXPRESSLY AND CLEARLY STATED IN SECTIONS 8(a) ABOVE, OR THE PRODUCT T&CS ATTACHED TO THE ORDER FORM FOR DIRECT SALE CUSTOMERS OR THE DISTRIBUTOR PURCHASE ORDER FOR CHANNEL PARTNERS, DISTRIBUTORS AND RESELLERS, THE PRODUCTS AND SERVICES ARE PROVIDED AT YOUR RISK, “AS IS” AND “AS AVAILABLE,” AND CONSERVATION LABS AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTY THAT THE SERVICES WILL BE ACCURATE, UNINTERRUPTED, TIMELY, OR ERROR-FREE.
(c) CONSERVATION LABS AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR EQUIPMENT; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CONSERVATION LABS OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
(d) CONSERVATION LABS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH THE CONSERVATION LABS PLATFORM) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND CONSERVATION LABS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDER OF SUCH PRODUCTS OR SERVICES.
(e) WHEN YOU INSTALL, SETUP OR USE PRODUCTS AND SERVICES LIKE THOSE PROVIDED BY CONSERVATION LABS YOU ARE GIVEN THE OPPORTUNITY TO ALTER DEFAULTS OR CHOOSE PARTICULAR SETTINGS. THE CHOICES YOU MAKE CAN CAUSE DAMAGE OR LEAD TO NON-RECOMMENDED OPERATION OF YOUR CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR SUCH DAMAGE WHEN YOU CHOOSE PARTICULAR SETTINGS OR SET OR ADJUST DEFAULTS.
(f) CONSERVATION LABS MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND CONSERVATION LABS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. CONSERVATION LABS MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
(9) LIMITATION OF LIABILITY
Nothing in these Terms and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable Law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) CONSERVATION LABS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, OR PROPERTY DAMAGE OR LOSS OF USE OF PROPERTY, ARISING FROM OR RELATING TO THE SERVICES OR THE PRODUCTS, EVEN IF CONSERVATION LABS KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) CONSERVATION LABS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SERVICES AND THE PRODUCTS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES OR PRICES ACTUALLY PAID BY YOU TO CONSERVATION LABS IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR THE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CONSERVATION LABS SHALL HAVE NO LIABILITY OF ANY KIND FOR ITS LICENSORS OR SUPPLIERS. UNDER NO CIRCUMSTANCES WILL CONSERVATION LABS BE LIABLE IN ANY WAY FOR ANY CONTENT, 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. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10. LIMITATION ON TIME TO FILE CLAIMS.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SITES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
11. Product Purchases; Service Fees and Payment
(a) Service Fees. For you to use the Services, the Owner, as the Account holder, must pay all applicable subscription and any other applicable fees under the Agreement in connection with the Services selected by the Owner (“Service Fees”) in accordance with these Terms. All Service Fees are non-refundable except as expressly stated in Section 11(d).
(b) CONTINUOUS SUBSCRIPTIONS. AS THE OWNER WHO PURCHASES ANY OF OUR SERVICES, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT CONSERVATION LABS IS AUTHORIZED TO CHARGE YOU IN ADVANCE A MONTHLY, SEMI-ANNUAL, ANNUAL, OR MULTI-ANNUAL SUBSCRIPTION SERVICE FEE DEPENDING ON THE BILLING CYCLE AGREED UPON BY YOU AND CONSERVATION LABS, IN ADDITION TO ANY APPLICABLE TAXES, FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR SUBSCRIPTION IS CONTINUOUS—MEANING THAT IT WILL AUTOMATICALLY RENEW ON THE SAME TERMS AND CONDITIONS—UNTIL YOU CANCEL IT OR SUCH SUBSCRIPTION SERVICE IS SUSPENDED, DISCONTINUED OR TERMINATED IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE “AUTO RENEWAL” LAWS WHERE YOU RESIDE. WE WILL PROVIDE YOU WITH WRITTEN OR ELECTRONIC NOTICE AT LEAST 30 DAYS BUT NOT MORE THAN 60 DAYS PRIOR TO THE BEGINNING OF THE AUTOMATICALLY RENEWED SUBSCRIPTION PERIOD. YOU MAY RECEIVE ADDITIONAL DETAILS OF THE AUTOMATIC RENEWAL PROVISION AND HOW TO CANCEL THE AUTOMATIC RENEWAL BY CONTACTING US AT: support@conservationlabs.com.
(c) Availability and Pricing. All Products offered are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Products and/or Services without prior notice. Prices for the Products and Services are subject to change at any time, but changes will not affect any order for Products you have already placed. In the event we change the pricing for any Service you have purchased, we will give you advance notice of this change in accordance with Section 15(b) (Notifications). After receiving this notice, you will be deemed to have accepted the change in pricing, unless you cancel your Services as set forth in Section 11(f).
(d) Billing for Subscription Services. We automatically bill the payment method associated with the Account on a monthly, semi-annual, annual or multi-annual basis, as applicable. Day one of your billing cycle begins on the date you activate your Services by pairing them to a Product, and/or installing the Product. You acknowledge that the amount billed may vary due to promotional offers, changes in your Subscription Services plan and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts. Without limiting its other rights and remedies, Conservation Labs may charge you as the Account holder an administrative late fee of the lesser of 1½% per month or the maximum rate allowed by applicable Law on the balance due until paid. The Owner agrees to pay Conservation Labs all costs of collection resulting from the Owner’s failure to pay any amounts due Conservation Labs hereunder.
(e) Cancellations and Refunds. You may cancel your Services at any time by contacting customer support by email at support@conservationlabs.com. Note that merely unpairing a Product from a Service will not trigger cancellation of the Service. In the event you cancel a Service, the Service will continue through the remainder of your billing cycle and not renew.
(f) Mobile Apps. By downloading or using a Mobile App, you as an Owner or Authorized User are granted a nonexclusive, revocable, non-transferrable, non-assignable limited right to install and use the Mobile App on a mobile device, and to access and use the functionality of the Mobile App on such device strictly in accordance with the terms of this Agreement and solely for the Conservation Labs Product or Services intended purpose. The license granted hereunder to use the Mobile App is contingent upon the purchase (either directly, or indirectly through an authorized Distributor) by the Owner of related Products and Services from Conservation Labs, and then that Mobile App license is only valid for so long as the Owner continues to have a valid subscription to the Subscription Services.
12. Term and Termination.
The Agreement shall be effective upon the earlier of the date you indicate assent to the terms and conditions of this Agreement through a digital signature process, the date that Conservation Labs accepts the applicable order, or the date of your first installation or use of an applicable Product or Service contemplated hereunder, and shall continue so long as you continue to abide by the terms and conditions of the Agreement. Conservation Labs hereby reserves the right to terminate these Terms and any rights provided hereunder, upon ten (10) day notice and failure to cure your breach of any of the terms contained in the Agreement. Upon termination of the Agreement, and except to the extent specified herein, (i) all fees due to Conservation Labs for shall be immediately paid, and (ii) all of your rights to access and use any of Services provided hereunder shall immediately terminate without right of refund. Provisions herein which by their context and content are intended to survive termination or expiration hereof shall so survive, including Sections 1(a), 3(c)-(l), 4, 5, 6, 7, 8, 9, 11, 12, 13 and 14 in these Terms, Sections 1 and 2 in the ” Product Terms”, Sections 1 and 5 in the “Subscription Services Terms”, and Sections 1 and 3 in the “SDK License Terms.”
(a) For Services. These Terms will remain in full force and effect so long as you continue to access or use the Services for which the applicable Service Fees have been paid, or until terminated in accordance with the provisions of these Terms, whichever is earlier. At any time, Conservation Labs may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if Conservation Labs in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines, terms, policies or rules, or the applicable Service Fees have not been paid. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new Owner will have no right to use the Product or Services under your Account. Any new Owner will need to register for a separate Account with Conservation Labs. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
(b) For SDK Licenses. Upon termination of this Agreement, (a) all rights and licenses granted in an SDK shall immediately terminate and any use of that SDK by or on behalf of Customer must immediately cease, and (b) Customer shall immediately delete all copies of the SDK licensed hereunder.
(c) For Mobile Apps. Upon termination of a Mobile App license in accordance with Section 2 of “Mobile App Terms”, or termination of the Agreement, (a) all rights and licenses granted in the Mobile App(s) shall immediately terminate and any use of that Mobile App(s) by you or on your behalf must immediately cease, and (b) you shall immediately delete all copies of the Mobile App(s) licensed hereunder from any mobile device.
On request by Conservation Labs, Customer shall provide to Conservation Labs certification of the foregoing, as applicable to Customer.
13. ARBITRATION AGREEMENT
PLEASE READ THIS SECTION CAREFULLY.
(a) Agreement to Arbitrate Disputes. Except as provided in Section 15(b), below, you and Conservation Labs agree that any dispute, claim or controversy that cannot be resolved informally or in small claims court arising out of or relating in any way to the Products and/or Services, these Terms, the Product T&Cs, the EULA or this Arbitration Agreement shall be determined by binding arbitration by a single arbitrator in accordance with this Section 13 and Section 15(b) (“Arbitration Agreement”), except that any arbitration between Conservation Labs and its Distributor shall be in accordance with the applicable Distribution Terms & Conditions between the parties. Arbitration is generally more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Where so authorized, arbitrators can award the same damages and relief that a court can award. BY AGREEING TO THESE TERMS, YOU AGREE THAT THE U.S. FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION AGREEMENT, AND THAT YOU AND CONSERVATION LABS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Arbitration Agreement shall survive termination of the Terms, and the termination of your Conservation Labs Services.
(b) Arbitration Notice. If you elect to seek arbitration, you must first send to Conservation Labs, by certified mail, a written notice of your claim (“Arbitration Notice”). The Arbitration Notice to Conservation Labs must be addressed to: Conservation Labs Legal Department, 370 C Pearl Street Brownsville PA 15417. Except as provided below, if Conservation Labs initiates arbitration, it will send a written Arbitration Notice to the email address used for your Conservation Labs account. An Arbitration Notice, whether sent by you or by Conservation Labs, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Conservation Labs and you do not reach an agreement to resolve the claim within 30 days after the Arbitration Notice is received, you or Conservation Labs may commence an arbitration proceeding by thereafter filing a copy of the Demand with the American Arbitration Association (“AAA”) at the AAA office nearest to the hearing location specified below (“Arbitration Notice Address”).
(c) Filing Fees. You may download or copy a form Arbitration Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after Conservation Labs receives notice from the AAA that you have commenced arbitration by filing your Demand at the Arbitration Notice Address, Conservation Labs will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000, in which event you will be responsible for filing fees.
(d) American Arbitration Association. The arbitration will be governed by the Consumer Arbitration Rules (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879 during normal business hours, or by writing to the Arbitration Notice Address. Unless otherwise agreed to, all arbitration proceedings shall be held in English. The arbitrator is bound by the terms of this Agreement, which shall govern over the AAA Rules and the FAA. Except as provided in Section 13(b), below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement. Unless Conservation Labs and you agree otherwise, any in-person arbitration hearings will take place in Allegheny County, Pennsylvania, or as the arbitrator may determine is mutually convenient for the parties.
(e) Telephonic/In-Person Hearing. If the Demand is for US$10,000 or less, the arbitration will be conducted, at the option of the party that made the first Demand, solely on the basis of documents submitted to the arbitrator, or through a telephonic hearing or, where the parties are represented by a spokesperson or attorney of their own choosing, through a hearing by videoconference. If the Demand exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall have the authority to require and supervise the exchange of relevant information, grant motions dispositive of all or part of any claim, to award monetary damages, and to grant any non-monetary remedy or relief available to a single individual or entity (and not a class or as a private attorney general) under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. 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 the confidentiality of all communications and documents related to any arbitration unless otherwise required by law. For the avoidance of doubt, the foregoing shall not prevent a party from submitting to a court of law information necessary to enforce this Agreement or an arbitration award, or to seek injunctive or equitable relief as may be permitted by these Terms.
(f) Claims Only In Individual Capacity. YOU AND CONSERVATION LABS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and Conservation Labs agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If a court decides that applicable Law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
(g) Changes to Arbitration Agreement. If Conservation Labs makes any changes to this Arbitration Agreement (other than a change to its Arbitration Notice Address or other contact information), you may reject any such change by sending us written notice within 30 days of the change to Conservation Labs at its address specified in Section 13(b). By rejecting a future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement, as modified by any changes you did not reject.
14. Digital Millennium Copyright Act
(a) Notice of Infringement. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(b) Copyright Agent. Conservation Labs, Inc.’s designated Copyright Agent to receive notifications of claimed infringement is Copyright Manager – Attention Legal, 370 C Pearl Street Brownsville PA 15417, or copyrightcompliance@conservationlabs.com. For clarity, only DMCA notices should go to the Copyright Agent. Any other feedback, comments, requests for technical support, and other communications should be directed to Conservation Labs customer service through support@conservationlabs.com. You acknowledge that if you fail to comply with all of the requirements of this Section 14, your DMCA notice may not be valid.
(c) Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent: (i) your physical or electronic signature; (ii) identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled; (iii) a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and (iv) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Allegheny County, Pennsylvania, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
(d) Restore Content. If a counter-notice is received by the Copyright Agent, Conservation Labs may send a copy of the counter-notice to the original complaining party informing that person that Conservation Labs may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 or more business days after receipt of the counter-notice, at Conservation Labs’ sole discretion.
15. General
(a) Governing Law and Jurisdiction. These Terms are governed by the laws of the State of Pennsylvania without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. You agree to submit to the exclusive jurisdiction and venue of the state and federal courts in and for Allegheny County, Pennsylvania, and consent to the personal jurisdiction of such courts for the purpose of litigating all claims or disputes, except for such claims or disputes that are required to be arbitrated as set forth in the Arbitration Agreement in Section 13.
(b) Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the provisions of the Arbitration Agreement, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s IP or confidential information shall not be subject to the Arbitration Agreement (“IP Claims”). Except for IP Claims, and notwithstanding the provisions of the Arbitration Agreement, either you or Conservation Labs may bring an individual action in small claims court.
(c) Severability. If any part of these Terms is determined to be illegal, invalid, unenforceable, or prohibited in any respect under any applicable Law in any jurisdiction, such provision or part thereof will be deemed to not form part of the contract between us but only in such jurisdiction(s). The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect in all other jurisdictions.
(d) Waiver. Failure or delay by us to enforce any of these Terms will not constitute a waiver of our rights against you and does not affect our right to require future performance thereof.
(e) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Conservation Labs’ prior written consent. These Terms may be assigned by Conservation Labs without restriction. These Terms are binding upon any permitted assignee.
(f) Electronic Communications. You are communicating with Conservation Labs electronically when you create or register to use your or the Owner’s Conservation Labs Account, use the Services, including but not limited to using our Sites, or send an email to Conservation Labs. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order Products or Services from Conservation Labs we collect and store at least your name, and email address. From that point forward, your email address is used to send you information about Conservation Labs products and services unless you opt-out of such emails using the opt-out link in the emails, except for emails that may in our determination be needed in order to effectively and properly allow us to provide the Services while your Account is open and that are not subject to the opt-out feature.
(g) Notifications. Conservation Labs may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your Account, mobile notifications, hard copy, or posting of such notice on www.conservationlabs.com. Conservation Labs is not responsible for any automatic filtering you or your network provider may apply to email notifications. Conservation Labs recommends that you add @conservationlabs.com email addresses to your email address book to help ensure you receive email notifications from Conservation Labs.
(h) Force Majeure. Conservation Labs will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event or circumstance beyond our reasonable control, including, without limitation, acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riots, actual or threatened acts of terrorism, war, fire, explosion, storm, flood, earthquake or other natural disaster, loss of power or connectivity, interruption or delay in transportation or travel, equipment failure, accident, epidemic or other widespread disease, new government restrictions or regulations, shelter-in-place orders, quarantines, government shutdown, malfeasance or breach by third-party suppliers.
(i) Interpretation. Headings are for convenience only and are not to be used in the interpretation of this Agreement. No term of any Order shall be construed in favor of, or against, a party as a consequence of a party having had a greater role in the preparation or drafting thereof, but shall be construed as if the language were mutually drafted by both parties with full assistance of counsel.
(j) Data Protection. By placing an order for Products and/or Services, you agree and understand that Conservation Labs may store, share, process and use data collected from your order form or phone/fax/email order for the purposes of processing the order. Conservation Labs may also share such data globally with its subsidiaries. Conservation Labs will protect your information in accordance with its Privacy Policy. Conservation Labs works with other companies that help Conservation Labs provide Products to you, such as freight carriers and credit card processing companies, and Conservation Labs may have to share certain information with these companies for this purpose. Their use of your information will be subject to their respective privacy policies, which may be different from Conservation Labs’ Privacy Policy.
(k) Copyrights. These Terms, and all content (whether or not a work made for hire) for which Conservation Labs owns the copyright, including on any Site or as provided through any Product or Service, is protected by applicable U.S. and foreign law. Copyright © 2020, Conservation Labs, Inc. All rights reserved. Any unauthorized use may be subject to prosecution.
(l) Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Products and Services are the property of Conservation Labs or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Conservation Labs or such respective holders. Conservation Labs reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
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