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HomePass Membership and Cloud Services Agreement
Last Updated: October 30, 2020
This Plume Membership and Cloud Services Agreement is between you and Plume Design, Inc. (“Plume,” “we,” or “us”) and governs your use of Plume’s cloud services, including Plume’s Adapt, Control, and Guard services, the Plume HomePass App, and Plume’s related mobile applications (together, the “Plume HomePass Services”) and your HomePass Membership (“HomePass Membership”) necessary to enable and use those Plume HomePass Services. This Plume Membership and Cloud Services Agreement is a legally binding contract between you and Plume regarding your use of the Plume HomePass Services and your HomePass Membership.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND PLUME ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 15.)
OVERVIEW; RELATION TO OTHER AGREEMENTS The Plume HomePass Services work in conjunction with Plume’s hardware products (“Plume Product(s)”) and certain third-party hardware products, in a manner designed to improve and give users more control over their internet experience, including by functioning as an adaptive WiFi system. To access and use the Plume HomePass Services, it is necessary to have an active HomePass Membership (see Section 3). These Terms govern your use of the Plume HomePass Services, Plume Products, and your HomePass Membership. Your purchase of any Plume Product and HomePass Membership subscription is governed by the Plume Terms of Sale and, as to the Plume Products, the Limited Warranty. The software embedded in the Plume Products (and any related software updates) (“Product Software”) is licensed and governed by the End User License Agreement. Users interact with and control the Plume HomePass Services via Plume’s Android and iOS mobile applications (the “Plume HomePass App”). For more details on Plume HomePass Services’ features and functionalities, please see Section 3
ACCESS AND USE
2.1. Limited License. Subject to your complete and ongoing compliance with these Terms, Plume grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of Plume HomePass App obtained from a legitimate marketplace on a mobile device that you own or control; and (b) access and use the Plume HomePass Services in connection with your HomePass Membership.
2.2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Plume HomePass Services; (b) make modifications to the Plume HomePass Services; or (c) interfere with or circumvent any feature of the Plume HomePass Services, including any security or access control mechanism. If you are prohibited under applicable law from using the Plume HomePass Services, you may not use them.
2.3. HomePass Memberships. To use the Plume HomePass Services, it is necessary to have an active HomePass Membership. Please see Section 3 (Homepass Memberships) for additional terms applicable to HomePass Memberships.
2.4. Devices; Software. Use of the Plume HomePass Services may require compatible devices, Internet access, and certain software (fees may apply), may require periodic updates, and may be affected by the performance of these factors. The latest version of required software may be required for certain transactions or features. You agree that meeting these requirements is your responsibility.
2.5. To access most features of the Plume HomePass Services, you must register for an account. When you register for an account, you may be required to provide us, or the applicable Plume Partner, with some information about yourself, such as your name and email address. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you may be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and any such password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected]. Plume reserves the right to limit the number of accounts that may be created from a device and the number of devices associated with an account
2.6. Automatic Updates. Plume may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications (“Updates”) to improve the performance of the Plume HomePass Services (including the Plume HomePass App) and/or the Product Software. 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 Plume HomePass Services and the Plume Products. 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 Plume HomePass Services and the Plume Products and you agree to install any Updates that Plume provides promptly. Your continued use of the Plume HomePass Services and the Plume Products is your agreement to the End User License Agreement with respect to updated Product Software; and any change or updates that Plume may make to these Terms or the End User License Agreement over time.
2.7. Reliability of Services.You acknowledge that the Plume HomePass Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Plume HomePass services relies and is dependent on, among other things, the transmission of data through the wi-fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, for which Plume is not responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively, “Service Interruptions”). You understand that Service Interruptions may result in the Plume HomePass Services being unreliable or unavailable for the duration of the Service Interruption. Although we will use commercially reasonable efforts to notify you of Service Interruption (including via the mobile app, email, or through our website), we cannot and do not guarantee that you will receive notifications within any given time, or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE PLUME HOMEPASS SERVICES FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. The Plume HomePass Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Plume does not offer any specific uptime guarantee for the Plume HomePass Services.
3.1. To use the Plume HomePass Services, it is necessary to have an active HomePass Membership. Plume offers HomePass Membership subscriptions for sale directly to consumers at its online store, and through various authorized resellers. In addition, Plume partners with other companies e.g., internet service providers) who may make HomePass Memberships available as part of their offerings to their customers (“Plume Partners”).
3.2. Membership Subscriptions.
3.2.1. Purchased from Plume. If you purchased your HomePass Membership subscription directly from Plume or its authorized reseller, that subscription will begin earlier of (i) when you first claim a Plume Product to that HomePass Membership, and (ii) 60 days after shipment of the Plume Products ordered with HomePass Membership. The date your subscription begins will be deemed the Subscription Billing Date (as defined in the Terms of Sale) for your HomePass Membership. Your HomePass Membership subscription will continue from that date for the period indicated in the applicable Order Confirmation (as defined in the Terms of Sale), and may automatically renew until automatic renewals are canceled in accordance with the Terms of Sale. If you wish to cancel an automatically renewing HomePass Membership subscription, please see our Terms of Sale, available.
3.2.2. Provided by a Plume Partner. If your HomePass Membership is provided by a Plume Partner (a “Partner Membership”), Plume’s obligation to enable the Plume HomePass Services in connection with that membership is governed by Plume’s agreement with that Plume Partner, and your right to a Partner Membership is governed by your agreement with that Plume Partner. Please note that the Plume Partner that provides your Partner Membership, and not Plume, is responsible for support for Plume Products and Plume HomePass Services when you are using your Partner Membership.
3.2.3. Transfer and Termination. HomePass Memberships are not transferrable between accounts. Once a HomePass Membership is claimed to an account (e.g., you claim one HomePass Membership to your account in connection with your home network, and you claim a second Plume Member to your account in connection with a second location), that HomePass Membership cannot be transferred to another account with Plume (e.g., to a friend or family member). In addition, to use a Plume Product that was associated with one account with a new or different account, a new or different valid HomePass Membership subscription (including payment of new HomePass Membership subscription fees) will be required to complete the setup of same hardware in connection with the new or different account.
3.2.4. Passive Service Mode. Following expiration of an active HomePass Membership subscription, the Plume Products and the Plume HomePass App used in connection with that HomePass Membership will function in a limited manner (together, “Passive Service Mode”). Specifically, when functioning in Passive Service Mode: (i) your Plume Products will be restricted to serving as a static home Wi-Fi system and will not receive Plume cloud-enabled performance, security, and usability enhancements; and (ii) the Plume HomePass App features will be restricted to basic network management and Wi-Fi configuration, viewing of Plume Products, and viewing of network devices. Plume Products will continue to receive firmware updates in accordance with Plume’s then-current support policies regardless of HomePass Membership status. To avoid doubt, Passive Service Mode is only available following expiration of an active HomePass Membership acquired directly from Plume, its reseller, or a Plume Partner, and is not available in connection with any Plume hardware that you may otherwise acquire.
SERVICES DESCRIPTIONS The following descriptions of the features and functionalities of the Plume HomePass Services are for informational purposes only, and will not be deemed to be a representation, warranty, or covenant under these Terms or otherwise.
4.1. Adapt is designed to manage the home Wi-Fi network and associated WAN connection, including network setup, Wi-Fi configuration, interference management, device connectivity control and optimization of the network backhaul connections for improved performance.
4.2. Control is designed to manage access, content and people in the Plume network. This includes guest access with password control, time of day access restrictions, device access permissions, people profiles creation and management, and content filtering.
4.3. Guard. Guard is designed to monitor and protect devices on the Plume network, including IoT devices, from accessing internet servers or services that may be harmful to the device or user of the network. Common protections can include restricting services known to host crypto-miners, ransomware, phishing sites, malware, key loggers, and botnets.
4.4. Plume HomePass App. Plume HomePass App, available on both iOS and Android platforms, serves as the user interface for the end user to setup, control and monitor all Plume HomePass Services.
AVAILABILITY. The Plume HomePass Services, or any feature or part thereof, may not be available in all languages or in all countries and Plume makes no representation that the Plume HomePass Services, or any feature or part thereof, is appropriate or available for use in any particular location. To the extent you choose to access and use the Plume HomePass Services, you do so at your own initiative and are responsible for compliance with any applicable laws.
6.1. Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Plume HomePass Services. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 6, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
6.2. Plume HomePass Services. Plume reserves the right to modify or discontinue the Plume HomePass Services at any time (including by limiting or discontinuing certain features of the Plume HomePass Services), temporarily or permanently, without notice to you. To the fullest extent permitted by law, Plume will have no liability for any change to the Plume HomePass Services or any suspension or termination of your access to or use of the Plume HomePass Services.
OWNERSHIP; PROPRIETARY RIGHTS
7.1. Plume HomePass Services. The Plume HomePass Services are owned and operated by Plume. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Plume HomePass Services (“Materials”) provided by Plume are protected by intellectual property and other laws. All Materials included in the Plume HomePass Services are the property of Plume or its third party licensors. Except as expressly authorized by Plume, you may not make use of the Materials. Plume reserves all rights to the Materials not granted expressly in these Terms.
7.2 If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Plume HomePass Services (“Feedback”), then you hereby grant Plume an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Plume HomePass Services and create other products and services.
PROHIBITED CONDUCT BY USING THE PLUME HOMEPASS SERVICES YOU AGREE NOT TO:
8.1. use the Plume HomePass Services for any illegal purpose or in violation of any local, state, national, or international law;
8.2. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
8.3. interfere with security-related features of the Plume HomePass Services, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Plume HomePass Services except to the extent that the activity is expressly permitted by applicable law;
8.4. interfere with the operation of the Plume HomePass Services or any user’s enjoyment of the Plume HomePass Services, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Plume HomePass Services; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Plume HomePass Services;
8.5. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Plume HomePass Services account without permission, or falsifying your age or date of birth;
8.6. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials; or
8.7. attempt to do any of the acts described in this Section 8, or assist or permit any person in engaging in any of the acts described in this Section 8.
THIRD PARTY TERMS
Third Party Sites and Linked Websites.Plume may provide tools through the Plume HomePass Services that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on Plume with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Plume may transfer that information to the applicable third party service. Third party services are not under Plume’s control, and, to the fullest extent permitted by law, Plume is not responsible for any third party service’s use of your exported information. The Plume HomePass Services may also contain links to third party websites. Linked websites are not under Plume’s control, and Plume is not responsible for their content.
10.1. User Content Generally. Certain features of the Plume HomePass Services may permit users to upload content to the Plume HomePass Services, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Plume HomePass Services. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Plume HomePass Services.
10.3. Limited License Grant to Other Users. By providing User Content to or via the Plume HomePass Services to other users of the Plume HomePass Services, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Plume HomePass Services.
10.4. User Content Representations and Warranties. Plume disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Plume HomePass Services. By providing User Content via the Plume HomePass Services, you affirm, represent, and warrant that:
10.4.1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Plume and users of the Plume HomePass Services to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Plume, the Plume HomePass Services, and these Terms;
10.4.2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Plume to violate any law or regulation; and
10.4.2. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
10.5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Plume may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Plume HomePass Services you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Plume with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Plume does not permit copyright-infringing activities on the Plume HomePass Services.
DIGITAL MILLENNIUM COPYRIGHT ACT
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Plume HomePass
Plume Design, Inc.
290 S. California Ave, Ste 200
Palo Alto, CA 94306 Phone: 408-498-5512
Any notice alleging that materials hosted by or distributed through the Plume HomePass Services infringe intellectual property rights must comply include the following information:
11.1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
11.2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
11.3. a description of the material that you claim is infringing and where it is located on the Plume HomePass Services;
11.4. your address, telephone number, and email address;
11.5. a statement by you that you have a good faith belief that the use of the materials on the Plume HomePass Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
11.6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Repeat Infringers. We will promptly terminate without notice the accounts of users that we determine by are “repeat infringers”. A repeat infringer is a user who has been notified of infringing activity more than twice or has had user content (e.g., comments) removed from the Plume HomePass Services more than twice.
INDEMNITY. To the fullest extent permitted by law, you are responsible for your use of the Plume HomePass Services, and you will defend and indemnify Plume and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Plume Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Plume HomePass Services; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
DISCLAIMERS; NO WARRANTIES. THE PLUME HOMEPASS SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLUME HOMEPASS SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PLUME DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLUME HOMEPASS SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLUME HOMEPASS SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PLUME DOES NOT WARRANT THAT THE PLUME HOMEPASS SERVICES OR ANY PORTION OF THE PLUME HOMEPASS SERVICES, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLUME HOMEPASS SERVICES, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PLUME DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PLUME HOMEPASS SERVICES OR PLUME ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLUME HOMEPASS SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE PLUME ENTITIES OR THE PLUME HOMEPASS SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PLUME HOMEPASS SERVICES AND YOUR DEALING WITH ANY OTHER PLUME HOMEPASS SERVICES USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE PLUME HOMEPASS SERVICES AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE PLUME HOMEPASS SERVICES) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Plume does not disclaim any warranty or other right that Plume is prohibited from disclaiming under applicable law.
LIMITATION OF LIABILITY TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PLUME ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PLUME HOMEPASS SERVICES OR ANY MATERIALS OR CONTENT ON THE PLUME HOMEPASS SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PLUME ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED IN SECTION 16 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PLUME ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PLUME HOMEPASS SERVICES OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PLUME FOR ACCESS TO AND USE OF THE PLUME HOMEPASS SERVICES IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM (BUT NOT INCLUDING THE PURCHASE PRICE FOR ANY PRODUCTS OR SUBSCRIPTION SERVICES); OR (B) $100. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
DISPUTE RESOLUTION AND ARBITRATION.
16.1. Generally. In the interest of resolving disputes between you and Plume in the most expedient and cost effective manner, and except as described in Section 7, you and Plume agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PLUME ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2. Despite the provisions of Section 15.6, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to:
16.2.1. bring an individual action in small claims court;
16.2.2. pursue an enforcement action through the applicable federal, state, or local agency if that action is available;
16.2.3. seek injunctive relief in a court of law in aid of arbitration; or
16.2.4. to file suit in a court of law to address an intellectual property infringement claim.
16.3. Any arbitration between you and Plume will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Plume. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.4. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Plume’s address for Notice is: Plume Legal, 290 S. California Ave #200, Palo Alto, CA 94306. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Plume may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Plume must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Plume in settlement of the dispute prior to the award, Plume will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
16.5. If you commence arbitration in accordance with these Terms, Plume will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Plume for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.6. No Class Actions. YOU AND PLUME 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 OR REPRESENTATIVE PROCEEDING. Further, unless both you and Plume agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.7. 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 15, you must notify Plume in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to Plume at the following address: Plume Legal, 290 S. California Ave #200, Palo Alto, CA 94306. Subject to Section 15.9 below, if you do not notify Plume in accordance with this Section 15.8, you agree to be bound by the arbitration and class-action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. Such notification must include: (a) your name, (b) the email address associated with your Plume account, (c) your mailing address, (d) a statement that you do not wish to resolve disputes with Plume through arbitration. This notification affects these Terms only; if you previously entered into other arbitration agreements with Plume or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and Plume.
16.8. Modifications to this Arbitration Provision. If Plume makes any future change to this arbitration provision, other than a change to Plume’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Plume’s address for Notice of Arbitration, in which case your account with Plume will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.9. Enforceability. If Section15.11 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16.7will govern any action arising out of or related to these Terms.
17.2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Plume submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara, California, for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Plume HomePass Services from our offices in Palo Alto, California, and we make no representation that Materials included in the Plume HomePass Services are appropriate or available for use in other locations.
17.4. Additional Terms. Your use of the Plume HomePass Services is subject to all additional terms, policies, rules, or guidelines applicable to the Plume HomePass Services or certain features of the Plume HomePass Services that we may post on or link to from the Plume HomePass Services, including without limitation, as applicable, the Website Terms, Terms of Sale, and End User License Agreement (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.6. Contact Information. The Plume HomePass Services are offered by Plume Design, Inc., located at 290 S. California Ave #200, Palo Alto, CA 94306. You may contact us by sending correspondence to that address or by emailing us at [email protected].
17.7. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Plume HomePass Services or to receive further information regarding use of the Plume HomePass Services.
17.8. Notice Regarding Apple. This Section 17 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Plume only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Plume HomePass Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Plume HomePass Services. If the Plume HomePass Services fail to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Plume HomePass Services. Apple is not responsible for addressing any claims by you or any third party relating to the Plume HomePass Services or your possession and/or use of the Plume HomePass Services, including: (a) product liability claims; (b) any claim that the Plume HomePass Services fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Plume HomePass Services and/or your possession and use of the Plume HomePass Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Plume HomePass Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (y) 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 (z) you are not listed on any U.S. Government list of prohibited or restricted parties.