Please read these Terms of Service (the “Agreement”) carefully as it sets forth the conditions of use of the Emporia Corp. website (the “Website”), downloadable mobile application (“Mobile App”), and web application (together with the Website and Mobile App, the “Service”) and is a legally binding agreement between you, personally, and any entity on whose behalf you are using the Service (collectively “You” and/or “Your”) and Emporia Corp. (“Emporia”).
If You do not agree to the terms and conditions of this Agreement, You should immediately cease all usage of the Service. Emporia reserves the right, at any time, to modify, alter, or update the terms and conditions of this Agreement without prior notice to You. Modifications shall become effective immediately upon being posted on the Emporia website. Your continued use of the Service after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.
Please note that this Agreement contains an arbitration clause and class action waiver (see Section 15). If You are a US resident, You agree to arbitrate disputes arising under or relating to this Agreement or your access to or use or receipt of our Service. If You are a US resident, You must bring claims individually, and You and Emporia waive your right to a jury, and waive all rights to enforce this Agreement in court or as a class, either through arbitration or in court.
1. Use of Service
You may use our Service, and You may only open an account or use our Service, if you can form legally-binding contracts under applicable law. You must (1) provide all equipment necessary for Your own Internet connection, e.g., Internet connection, computer, tablet, or mobile device, etc., and (2) provide for Your access to the Internet. Subject to the terms and conditions of this Agreement, may access and use the Service for your own personal use, except as otherwise provided in a written agreement with Emporia. No other right, title or interest is granted in, and to the Service. You shall not modify the Service, except as expressly authorized in writing by Emporia, nor adapt, translate, reverse engineer, decompile, disassemble, and/or otherwise attempt to discover the source code of the software, nor take any other steps to discover the confidential information and/or trade secrets contained in the Service.
Emporia grants you limited, revocable, worldwide, non-transferable, non-sublicensable license to download, install, access and make personal use of the Mobile App. You may not modify it, or any portion of it, or use it for any commercial purpose, except as otherwise provided in a written agreement with Emporia. Emporia cannot and does not guarantee or warrant that the Mobile App or any data, files, or other systems or services accessed or made available through the Mobile App will be free of infection or viruses, worms, vulnerabilities, Trojan horses or other code that manifests contaminating or destructive properties.
3. Intellectual Property
The Service, and all content included or available through the Service, including the Service design, text, graphics, interfaces, and the selection and arrangements thereof, and all trademarks, copyrights, database rights and other intellectual property rights related to it belong to Emporia or its licensors or suppliers. Any use of materials on or from the Service, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Emporia is strictly prohibited.
4. Your Material
You grant Emporia a non-exclusive, royalty free, fully paid, perpetual, worldwide license to Your Material and any intellectual property rights therein, to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use Your Material.
Emporia does not want and you agree to not provide any credit card information, bank account information or numbers, social security numbers, or any other sensitive personal information that if lost, compromised or disclosed could result in substantial harm or inconvenience to you or a third party.
We welcome your comments and feedback about our Service. All information and materials submitted to Emporia through the Service or otherwise, such as any comments, feedback, ideas, questions, designs, data, User Content, or the like regarding or relating to the Service or the business of Emporia (collectively, "Feedback"), will be considered NON-CONFIDENTIAL and NON-PROPRIETARY with regard to you, but Emporia reserves the right to treat any such Feedback as the confidential information of Emporia.
By submitting Feedback to Emporia, you assign to the Company Parties, free of charge, all worldwide rights, title and interest in all copyrights and other intellectual property rights in such Feedback. The Company Parties will be entitled to use any Feedback you submit, and any ideas, concepts, know-how or techniques contained in any such Feedback, for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and Service using such Feedback without restriction and without compensating you in any way. You are responsible for the information and other content contained in any Feedback you submit to us, including, without limitation, its truthfulness and accuracy.
6. Restricted Activities
You may not engage in any of the following with regard to the Service (including without limitation posting or transmitting content through the Service):
- violate or encourage the violation of any local, state, national, or international law or regulation;
- collect or store Personal Data about other users of our Service or solicit personal information from any individual without proper rights or consent of the individual;
- send or promote any message that is unlawful, libelous, defamatory, abusive, sexually explicit, threatening, vulgar, obscene, profane, disparaging regarding racial, gender or ethnic background, any statement that you have reason to know is false or misleading, or otherwise objectionable messages, as determined by Emporia in its sole discretion;
- infringe any patent, trademark, trade secret, copyright, right of publicity or privacy, or other right of any party, or distribute any content you do not have a right to make available under any law or under contractual or fiduciary relationships;
- promote or distribute any unauthorized advertising, promotional materials, or material which can be characterized as “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or similar material, any request for or solicitation of money, goods, or Service for private gain, or any information posted primarily for advertising, promotional, or other commercial purposes;
- disrupt or interfere with the security or use of the Service or any Service or content linked to them;
- interfere with or damage the integrity of the Service, including, without limitation, through the use of viruses, Trojan horses, harmful code, denial of service attacks, packet or IP spoofing, forged routing or email address information or similar methods or technology or disobey any requirements, procedures, policies, or regulations of networks connected to our Service;
- use the Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs or Trojan horses;
- attempt to use another user, person or entity, misrepresent your affiliation with a person or entity, including (without limitation) Emporia or create or use a false identity;
- attempt to obtain unauthorized access to the Service or portions thereof that are restricted from general access;
- use any meta tags or any other “hidden text” utilizing Emporia name, trademarks, or product names;
- attempt to reverse engineer or otherwise derive or obtain the code in any form for any software used in the Service;
- engage in any activity that interferes with any third party’s ability to use or enjoy the Service; or
- assist any third party in engaging in any activity prohibited by this Agreement.
Further, without our written consent, you may not:
- reproduce, duplicate, copy, sell, resell, create derivative works, or exploit for any commercial purpose any Emporia content or any use of or access to the Service;
- use any high volume, automated, or electronic means (including, without limitation, robots, spiders, scripts, or other automated devices) to access the Service or monitor or copy our web pages or the content contained thereon;
- deep link to the Service for any purpose; or frame the Service, place pop-up windows over any content, or otherwise affect the display of the Service;
- access the Service in order to build a competitive Service, product, or service; or
- reverse engineer any code or software used in relation to the Service (to the extent such restriction is permitted by law).
7. Representations and Warranties
You represent and warrant to Emporia that: (i) You have the full power and authority to enter into and perform your obligations under this Agreement; (ii) Your assent to and performance of Your obligations under this Agreement does not constitute a breach of or conflict with any other agreement or arrangement by which You are bound, or any applicable laws, regulations or rules; (iii) all information provided by You on Your account is accurate and current and will be updated by You to remain current; (iv) this Agreement constitutes legal, valid and binding obligations on You, enforceable in accordance with its terms and conditions; (v) You will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in Your use of the Service; (vi) You will comply with all applicable laws, rules and regulations in Your use of the Service, as well as the agreed upon terms of this Agreement; and (vii) You understand and acknowledge that Emporia may terminate this Agreement at any time in its sole discretion.
8. Disclaimer and Warranties
The Service is provided by Emporia on an “as is” and on an “as available” basis. To the fullest extent permitted by applicable law, Emporia makes no representations or warranties of any kind, express or implied, that the Service or the use thereof (i) will be free from defects, inaccuracies or errors, (ii) will be uninterrupted or secure (iii) will meet Your requirements or (iv) will operate in the configuration or with the other software You use. Emporia, its related entities, its service providers, its licensors, and its or their respective officers, directors, employees or agents (collectively the “Company Parties”) disclaim all warranties with regard to the Service or information provided through the Service, including the implied warranties of merchantability and fitness for a particular purpose, title, and non-infringement. The Company Parties are not responsible for the timeliness of delivery of content, any failures of delivery, erroneous deletion, or any loss or damage of any kind you claim was incurred as a result of the use of the Service.
9.Limitation of Liability
THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR, COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE SERVICE, OR ITS USE, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF THE COMPANY PARTIES ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE WEBSITE OR THE SERVICE EXCEED $100.00. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You acknowledge that you may have or may in the future have claims against us which you do not know or suspect to exist in your favor when you agreed to this Agreement and which if known, might materially affect your consent to this Agreement. You expressly waive all rights you may have under Section 1542 of the California Civil Code, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR 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.
You agree to indemnify and hold Emporia, its officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of Your use of the Service, the violation of this Agreement, or infringement by You of any intellectual property or any other right of any person or entity.
11. Modifications and Interruption to Service
Emporia reserves the right to stop providing the Service with or without notice to You. Emporia shall not be liable to You or any third party should Emporia exercise its right to stop providing the Service. You acknowledge and accept that Emporia does not guarantee continuous, uninterrupted or secure access or use of the Service and operation of the Service and may be interfered with or adversely affected by numerous factors or circumstances outside of Emporia’s control.
12. Third-Party Sites and Information
The Application may include links to third party sites, integrations with third party data or service providers, or offers from third party service or product providers that are owned and operated by unrelated third parties, business partners of Emporia, third party resellers or other third parties (each a “Third Party”). Similarly, the Service may include links to other sites on the Internet that are owned and operated by online merchants and other Third Parties and may rely on Third Party information to provide Service through the Service.
You acknowledge that Emporia is not responsible for the availability, security, or content or any other aspect of any Third Party’s sites, services, or other activities, nor the accuracy of the information provided by any such Third Party. Any non-Emporia services or products offered to, or purchased by, or made available to you through the Service (including via Third Party Integrations) shall be governed by the terms and conditions entered into between You and such Third Party. EMPORIA IS NOT RESPONSIBLE FOR ANY SUCH THIRD PARTY SERVICES OR PRODUCTS, NOR SHALL EMPORIA BE LIABLE FOR ANY DAMAGES ARISING OR RELATED TO SUCH THIRD PARTY SERVICE OR PRODUCT. EMPORIA ASSUMES NO RESPONSIBILITY FOR UNINTENDED, OBJECTIONABLE, INACCURATE, MISLEADING, OR UNLAWFUL CONTENT MADE AVAILABLE TO YOU BY ANY THIRD PARTY
If you purchase or otherwise obtain equipment, such as devices to measure and monitor energy use, directly or indirectly, from Emporia (“Equipment”) in conjunction with or related to the Service, or otherwise under this Agreement, such Equipment is subject to the terms and conditions (including the warranties and disclaimers) provided with such Equipment.
13. Consent to Electronic Communications
You agree that Emporia may communicate with you electronically regarding your use of the Service and related matters, and that any notices, agreements, disclosures or other communications that Emporia sends to you electronically will satisfy any legal communication requirements, including that the communications be in writing. To withdraw your consent to your receipt of electronic notice, please notify Emporia at: email@example.com
14. Governing Jurisdiction and Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without giving effect to any principles of conflicts of law. Where your local law requires this Agreement to be governed by local law, the choice of law clause shall not apply. You agree that this Agreement is made and performed in the State of Colorado, and that venue for any action at law or in equity arising out of or relating to this Agreement shall be exclusively limited to the state or federal courts located in the State of Colorado, subject to the Class Waiver and Arbitration provisions below. You hereby consent and submit to the exercise of personal jurisdiction over you by such courts for the purpose of litigating any such action, and waive any defenses of lack of minimum contacts or forum non conveniens. Where your local law requires disputes to be heard in local courts, the forum selection clause shall not apply.
15. Arbitration and Class Waiver
IF YOU ARE A US RESIDENT OR SUBJECT TO US LAW, YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS WAIVER PROVISIONS:
You and Emporia agree that any claim, action, dispute, or controversy arising out of or in any way relating to this Agreement, its enforceability, or formation, or the Services, including without limitation your access to, or use or receipt of any Services, any purchases or transactions conducted through the Services, or any data, information, or other matter made available through the Service, in each case, regardless when that dispute, claim, action, or controversy arose, and regardless of the relevant legal theory (“Disputes”) shall be resolved exclusively by confidential, binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. The place of the arbitration will be in Denver County, Colorado unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The foregoing arbitration is not a required to use our Services. You may opt-out of the foregoing arbitration requirement by sending written notice, within 30 days of the date you accept this Agreement (unless applicable law requires a longer period), to us at 7901 Shaffer Parkway, Littleton, CO 80127, attn: “Legal,” together with your name, address, and a clear statement that you wish to opt-out of the Emporia Terms of Service mandatory arbitration provision.
If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall remain enforceable to the maximum extent allowed by law. If for any reason a claim proceeds in court rather than in arbitration, you waive your right to bring or participate in a class, consolidated, or representative action lawsuit and we each waive any right to a jury trial.
Notwithstanding the foregoing arbitration requirement, with regard to any actual or potential violation of our intellectual property rights, we may seek injunctive or other appropriate relief in the state and federal courts of Denver County, Colorado and you hereby consent to the exclusive jurisdiction of such courts and waive all objections thereto.
16. Compliance with Laws
You assume all knowledge of applicable law and are responsible for compliance with any such laws. You shall not use or access the Service in any way that violates applicable state, federal, or international laws, regulations or other government requirements. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. You agree not to upload, post, email, transmit, or otherwise make available any content that (i) is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech, (ii) discloses any sensitive information about another person, including that person’s email address, postal address, phone number, credit card information, or any similar information, or (iii) is intended to “stalk”, threaten or otherwise harass another person.
17. Notice for California Residents
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18. Other Terms
If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provisions) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. You agree that this Agreement and any other agreements referenced herein may be assigned by Emporia, in its sole discretion, to a third party in the event of a merger or acquisition or sale of all or substantially all of the assets of Emporia. This Agreement shall apply in addition to, and shall not be superseded by, any other written agreement between You and Emporia. This Agreement contains the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our Site or relating to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Emporia will not be liable for any failure or deficiency in the performance or availability of the Site by reason of the occurrence of any event beyond our reasonable control, including without limitation, a labor disturbance, an Internet outage, interruption of Site, communication outage, failure by a third-party provider or service, fire, terrorism, natural disaster, pandemic, act of God, or war.
19. Apple Required Terms
- Acknowledgement: Emporia and You acknowledge that this Agreement is concluded between Emporia and You only, and not with Apple, and Emporia, not Apple, is solely responsible for the Service and the content thereof.
- Scope of License: The license granted to You for the Mobile App is limited to a non-transferable license to use the Mobile App on any Apple-branded products that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that the Mobile App may be accessed, acquired, and used by other accounts associated with You via Family Sharing or volume purchasing.
- Maintenance and Support: As between Apple and Emporia, Emporia is solely responsible for providing maintenance and support services, if any, with respect to the Service, as specified in this Agreement, or as required under applicable law. Emporia and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
- Warranty: As between Apple and Emporia, Emporia is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Service to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the relevant App to You. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Emporia’s sole responsibility.
- Product Claims: Emporia and You acknowledge that Emporia, not Apple, is responsible for addressing any claims by You or any third party relating to the Service or your possession and/or use of that Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights: Emporia and You acknowledge that, in the event of any third-party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights, to the extent a warranty of non-infringement is not validly disclaimed, Emporia, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Compliance: You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address: Emporia may be contacted at firstname.lastname@example.org in connection with any questions, complaints or claims with respect to the Service.
- Third Party Terms of Agreement: You must comply with third party terms of agreement when using the Mobile App.
- Third Party Beneficiary: Emporia and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary thereof.
20. Additional Terms Relevant to Google Inc.
- This Agreement constitutes a license agreement in lieu of any license grant provided by Google to use the Mobile App on a Supported Device. A “supported device” is a combination of a mobile device running Android software and an Android software version(s) that is supported by Emporia mobile Mobile App. This Agreement is are made between You and Emporia only, and not with Google. Emporia is solely responsible for the Emporia mobile Mobile Apps.
- The Google Play marketplace is owned and operated by Google Inc. your use of Google Play is governed by a legal agreement between You and Google consisting of the Google Terms of Service (found at http://www.google.com/accounts/TOS) and the Google Play Terms of Service (found at https://play.google.com/intl/en-US_us/about/play-terms.html and together with the Google Terms of Service called the “Terms”). The Google Play Terms of Service and Google Terms of Service shall take precedence in that order in the event of a conflict between them, to the extent of such conflict.
- Emporia is solely responsible for providing, and Google has no obligation to provide, maintenance and support for the Emporia mobile Mobile Apps. Support requests, as well as questions, complaints or claims regarding the Emporia mobile Mobile Apps, may be directed to email@example.com.
- To the maximum extent permitted by applicable law, Google will have no warranty obligation whatsoever with respect to the Emporia mobile Mobile Apps, and will not be liable for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.
- Google shall not be responsible for addressing any claims by You or any third party relating to the Emporia mobile Mobile Apps or your possession and/or use of the Emporia mobile Mobile Apps including but not limited to (i) product liability claims, (ii) any claim that the Emporia mobile Mobile Apps fails to conform to any applicable legal or regulatory requirement, or (iii) claims arising under consumer protection or similar legislation.
- Google shall not be responsible for the investigation, defense, settlement or discharge of any claim that the Emporia mobile Mobile Apps or your possession and use thereof infringes a third party’s intellectual property rights.
- You represent and warrant that (i) the Service will not be downloaded or used in, or transported to, a country that is subject to a United States Government embargo or has been designated by the United States Government as a “terrorist-supporting” country, and (ii) You are not listed on any United States Government list of prohibited or restricted parties.
- Removal of Emporia mobile Mobile Apps. Emporia or Google Inc. may, at any time and without notice, restrict, interrupt or prevent use of the Emporia mobile Mobile Apps, or delete the Emporia mobile Mobile Apps from your Supported Device, without entitling You to any refund, credit or other compensation from Emporia or any third party (including, but not limited to, Google Inc. or your network connectivity provider).
If you have any questions about this Agreement, please contact: firstname.lastname@example.org