By using our Products and Services, you represent that you are of sufficient legal age in your jurisdiction to use or access the Products and Services and to enter into this agreement.
(Effective March 9, 2020)
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE DISPUTE RESOLUTION AND ARBITRATION SECTION. Please follow the instructions in the Dispute Resolution and Arbitration Section below if you wish to opt-out of this provision.
By using our Products and Services, you represent that you are of sufficient legal age in your jurisdiction to use or access the Products and Services and to enter into this agreement. You further agree that you are able and competent to enter into the Terms. If you cannot meet these conditions, you should stop using our Products and Services.
You must be age 18 or older to act as an “Owner” of a HomeAware account. “Authorized Users” must be at least 13 years of age, and if you are between 13 and 18 years of age, you must only use the Products and Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms on your behalf. Any use of or access to the Products and Services by individuals under the age of 13 is strictly prohibited and is a violation of these Terms.
If you have any questions regarding your HomeAware Products and Services, please contact HomeAware customer support. PLEASE DO NOT CONTACT CUSTOMER SUPPORT FOR ANY LIFE/SAFETY EMERGENCY. IF YOU HAVE ANY SUCH EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, 911, OR OTHER EMERGENCY RESPONDER.
HomeAware is not a 911 service or dispatch center, an emergency service provider, or a lifesaving solution for people at risk in their home or otherwise. Moreover, the full functionality of HomeAware’s Products and Services (such as the “report to police” function), are not currently enabled for the Beta User Program, so HomeAware should not be relied upon for any purpose.
To use our Products and Services, you must register for an account and provide certain information about yourself. You agree that all of the information you provide will be true and complete and that you will promptly update your information to keep it true and complete.
You are responsible for maintaining the confidentiality of your account login information and for all activity that occurs under your account. You agree that you will choose a strong password (a password that contains a combination of uppercase letters, lowercase letters, numbers and symbols) that is difficult to guess and change it frequently. You agree that you will maintain the confidentiality of your password and that you are responsible for all activities that occur under your account. You agree to immediately notify us if there is any unauthorized use of your account or any other security breach.
The person who creates an account is an “Owner,” and the Owner can create “Authorized Users” who may have the ability to use and view content from the Products and Services. Both the Owner and Authorized User are responsible for any actions taken by the Authorized User in connection with the Products and Services. As a result, Owners should only authorize people who they trust to become Authorized Users.
Without limiting any rights which we might otherwise have, we reserve the right to take any and all action to ensure the security of your account, including suspending or terminating your account, changing your password, or requesting additional information from you to continue your ability to access and use our Products and Services. That said, you agree that we may rely on the authority of anyone using your password to access your account, and in no event and under no circumstances shall we be held liable to you for any liabilities or damages resulting from or arising out of any: (1) action or inaction by us under this provision; (2) compromise to the confidentiality of your password or account; and (3) unauthorized access to your account or use of your password.
The security of your information is important to us. While there is no such thing as perfect security on the Internet, we will take reasonable steps to help ensure the safety of your personally identifying information. However, you understand and agree that such steps do not guarantee that the use of the Products and Services is invulnerable to all security breaches, and we make no warranty, guarantee, or representation that use of our Products and Services is protected from viruses, security threats, or other vulnerabilities.
ACCESS TO SERVICES
Subject to these Terms, Ensnare grants you a revocable, non-transferrable, non-exclusive license (without the right to sub-license) to access and use the Services solely for the purpose of controlling and monitoring the Products you have been provided as part of the HomeAware Beta User Program. The copyrights, trade secrets, intellectual property, and other rights, titles, and interests therein are the exclusive property of Ensnare, Inc. You do not have the right to transfer the Products or Services to someone else, and no one else has the right to use the Products or Services under your account. Additionally, you do not have the right to use the Products and Services under someone else’s account.
We may develop patches, bug fixes, updates, or other upgrades to improve the performance of the Products or Services. These may be automatically installed without providing you any additional notice or receiving any additional consent. If you do not agree to receive these automatic updates, you should stop using the Products and Services. You acknowledge that you may be required to install updates, and you agree to install any updates promptly.
We may provide you with the ability to integrate with third-party products and services. You decide whether you want HomeAware to integrate with any other third-party products and services. Your consent and authorization is required for the integration and can be revoked at any time. Once you have consented, you agree that HomeAware may exchange information and data regarding you and your products in order to enable the integration you have authorized. Once this information is shared with the third party, its use will be governed by the third party’s privacy and other policies. You acknowledge and agree that we make no representation or warranty about the quality, reliability, content or safety of any third-party products or services.
HomeAware is intended for purely personal and household use. You agree that you will only install HomeAware at a location that you own, rent or otherwise have the right to control and monitor. 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 Ensnare) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services, including, but not limited to, (1) any laws relating to the recording or sharing of video or audio content; or (2) any laws requiring notice to third parties, or consent of third parties with respect to your use of HomeAware.
Please view our Beta User Privacy Statement, which explains our practices relating to the collection and use of your information through or in connection with our Products and Services. Our use of your information is governed at all times by this Privacy Statement, which is incorporated by reference into these Terms. You understand that through your use of our Products and Services you consent to the collection and use of your information as set forth in the Beta User Privacy Statement.
GUIDELINES ON USE
The rights granted to you in these Terms and through participation in the HomeAware Beta User Program are subject to the following restrictions: (1) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Products or Services; (2) you agree not to modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Products or Services; (3) you agree not to access the Products or Services in order to build a similar or competitive Product or Service; (4) except as expressly stated herein, no part of the Products or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form by any means; (5) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network or the Products or Services; (6) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services; and (7) you agree not to remove, obstruct, or alter any proprietary rights notices that may be displayed in connection with the Products and Services.
You agree to use our Products and Services in a manner consistent with applicable laws and regulations. Additionally, you will not use any of our Products and Services in any manner that:
LIMITATIONS OF PRODUCTS AND SERVICES
While the goal of the HomeAware Beta User Program is to develop Products and Services that are effective and reliable, the Products and Services should not at this time be relied upon for any purpose. As your HomeAware Beta User Consent Form sets forth in greater detail, you are participating in the Beta User Program with the intent of testing and helping us make improvements to the Products and Services, and not because you have been granted any warranties about the Products and Services.
YOU UNDERSTAND AND AGREE THAT THE PRODUCTS AND SERVICES WILL NOT DISPATCH ANY EMERGENCY SERVICES TO YOUR HOME IN THE EVENT OF AN EMERGENCY, AND SHOULD NOT BE RELIED UPON TO DETECT OR PREVENT EMERGENCIES OR SECURITY THREATS.
You should prevent any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. To the fullest extent permitted by law, you release us from all liability for any loss, occurrence, event or condition covered by your insurance.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
LIMITATION OF LIABILITY
IN NO EVENT SHALL ENSNARE, INC., ITS EMPLOYEES, OFFICERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (1) THE USE OR INABILITY TO USE THE PRODUCTS OR SERVICES; (2) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE CONTENT, MATERIALS, SOFTWARE, INFORMATION, PRODUCTS, OR SERVICES; (3) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (5) STATEMENTS OR CONDUCT OF ANY THIRD PARTY CONNECTED WITH OUR PRODUCTS OR SERVICES; OR (6) ANY OTHER MATTER RELATING TO OUR PRODUCTS AND SERVICES, EVEN IF WE OR OUR AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PRODUCTS AND SERVICES IS TO STOP USING THE PRODUCTS AND SERVICES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF ENSNARE, INC. UNDER SUCH CIRCUMSTANCES FOR LIABILITY THAT WOULD OTHERWISE HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
To the extent permitted under applicable law, you agree to indemnify, defend and hold harmless Ensnare, Inc. and its service providers, licensors and suppliers, and each of their respective subsidiaries, affiliates, officers, agents, and employees, from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, made by any third party due to or arising out of (1) all claims, actions, lawsuits and any other legal action brought by any third party arising from or relating to (a) your use and each of your Authorized User’s use of the Products or Services; (b) your or your Authorized User’s violation of these Terms; (c) any Submitted Material or Content you provide. Your indemnification obligation does not apply to any willful, wanton, intentional or gross negligence of Ensnare, Inc., in those states that do not permit indemnification for gross negligence. These obligations will survive any termination of your relationship with us or your use of our Products and Services. We reserve the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
COPYRIGHT AND AUTHORIZATION
The Products and Services provide you access to a wide variety of information (including text, graphics, photographs, and audio) (“Content”). Some of the Content is owned by us. Other Content is owned by other companies such as suppliers, vendors, and licensors. The Content within our Products and Services are protected by a variety of laws. Subject to the rules and limitations set forth in the Terms, you are granted a revocable, limited, non-transferable right to access the Content and the Products and Services for your personal non-commercial use only. Your access to the Content, Products and Services does not transfer to you any rights, title or interest in or to intellectual property rights. You may not make any copies of the Products and Services or transfer the Products and Services to any third party.
Pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA”), 17 U.S.C. § 512(b)-(d), all claims alleging copyright infringement for material in our Products and Services should be promptly sent in the form of a written notice to our designated agent: Ensnare, Inc., Office of the General Counsel, 625 W. Adams Street, 19th Floor, Chicago, Illinois 60661.
TRADEMARKS AND SERVICE MARKS
Trademarks that are used or displayed on the Products and Services are owned by Ensnare, Inc. Our trademarks may not be copied or used, in whole, part, or modified form, without our prior written permission. In addition, our custom graphics, logos, scripts, and page headers are covered by trademark, trade dress, copyright or other laws, and may not be copied, imitated, or used, in whole, partial, or modified form, without our prior written permission. Other trademarks, service marks, registered trademarks, product and service names, and company names or logos that appear on the Products and Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You may not use any Ensnare, Inc. name, trademark, or product name without our express written consent.
FEEDBACK / SUBMISSIONS TO US
As a Beta User, you are invited to submit comments, suggestions, or ideas about the Products or Services, including how to improve the Products or Services (“Submitted Material”). In the event you do so, you agree that your submissions are voluntary, gratuitous, and without restriction you hereby grant to us a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free sub-licensable and transferable license to use all such Submitted Material in any manner whatsoever without compensation or attribution to you. You agree that we are not under any obligation of confidentiality, express or implied, with respect to the Submitted Material. You represent and warrant that you own or otherwise control all of the rights to the Submitted Material that you supply, that the Submitted Material is accurate, and that use of the Submitted Material does not violate these Terms and will not cause injury to any person or entity.
We provide these Products and Services for use only by persons located within the United States. We make no representation that all Products or Services are appropriate or available for use in locations outside the United States or all jurisdictions within the United States. Those who choose to use our Products or Services are responsible for compliance with local laws.
No Product or Service or underlying information or technology may be downloaded or otherwise exported or re-exported: (1) into any U.S. embargoed countries; or (2) to a person or entity identified on lists of the U.S. Treasury Department (e.g., Specially Designated Nationals, Denied Persons or Entities) or the U.S. Commerce Department (e.g., Entity List, Table of Deny Orders), which control such exports. By downloading or using the Products or Services or underlying information or technology, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
You agree that we may modify, terminate or suspend your account and access to all or any part of the Products and Services or change your password without notice at any time. You agree that all modifications, terminations, and suspensions shall be made in our sole discretion and that we shall not be liable to you or any third party for any modification termination or suspension of your account, loss of storage, or access to the Products and Services.
OPEN SOURCE NOTICE
Certain items of independent, third-party code may be included in the Products and Services that are subject to the GNU General Public License 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.
DISPUTE RESOLUTION AND ARBITRATION / CLASS ACTION WAIVER / JURY TRIAL WAIVER / WAIVER OF PUNITIVE DAMAGES
PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW TO OPT OUT OF THE ARBITRATION REQUIREMENT.
Ensnare and you agree to arbitrate all disputes or claims that arise from these Terms, or the Products or Services, except for: (1) claims arising from bodily injury; (2) claims that are qualified to be brought in small claims court in your county of residence; or (3) either Ensnare or you seeking injunctive or other equitable relief in state or federal court in Cook County, Illinois to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. THIS AGREEMENT TO ARBITRATE IS MANDATORY AND NOT PERMISSIVE. This agreement to arbitrate is intended to be broadly interpreted. This agreement does not stop either of us from bringing issues to the attention of federal, state, or local agencies.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT WE EACH ARE: (1) WAIVING THE RIGHT TO A TRIAL BY JURY; (2) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (3) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this arbitration provision.
If either of us intends to seek arbitration of a dispute, that party must provide notice in writing. The notice to Ensnare should be sent to: Ensnare, Inc., Office of the General Counsel, 625 W. Adams, 19th Floor, Chicago, Illinois 60661. Ensnare will send notice to you at the email and/or mailing address associated with your account. Your notice to Ensnare must provide: (1) your name, mailing address, and email address; (2) a summary of the dispute; (3) the relief you are requesting. If we are unable to reach an agreement to resolve the dispute within 45 days after the notice is received, either party may commence arbitration.
If we do not reach an agreed resolution within 45 days from the original notice, either party may initiate binding arbitration as the sole means to resolve claims, subject to these terms. Arbitration shall: (1) be administered by the Judicial Arbitration and Mediation Services, Inc., (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures then in effect (the “JAMS Rules”) and as modified by this agreement to arbitrate; (2) be conducted by a single, neutral arbitrator; and (3) take place in the county where you reside or any reasonable location within the United States convenient for you. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards for Procedural Fairness, the Minimum Standards in that regard will apply.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS, AND NOT IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION. Unless you and Ensnare both 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. 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.
YOU THEREFORE UNDERSTAND AND AGREE THAT YOU AND ENSNARE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION.
The JAMS Rules are available on its website at http://www.jamsadr.com/rules-streamlined-arbitration. Notwithstanding any JAMS Rules to the contrary, you and Ensnare each agree that all issues are delegated to the arbitrator to decide. Further, the arbitrator and not any court shall have the exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. The arbitrator’s award shall be written and binding on parties and may be entered as a judgment in any court of competent jurisdiction.
If your claim does not exceed $10,000, you and Ensnare agree to waive an oral hearing by the arbitrator and the arbitration will be conducted solely on the basis of documents you and Ensnare submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. To the extent an oral hearing is requested by you or Ensnare, or deemed necessary by the arbitrator, you and Ensnare agree that the hearing will be conducted telephonically or videographically.
An arbitrator’s award will include a written statement of the disposition of each claim and will also provide a concise written statement of the essential findings and conclusions which form the basis of the award. The arbitrator’s decision and award is final and binding, with some limited court review under the FAA, and judgment on the award may be entered in any court of competent jurisdiction.
It is each party’s responsibility to pay any JAMS filing, case management/administrative, and arbitrator fees as set forth in the JAMS Rules. To the extent the filing fee for arbitration exceeds the cost of filing a lawsuit, Ensnare will pay the additional cost. If your claim for damages does not exceed $25,000, and you follow the dispute notice procedure set forth above, Ensnare will pay all such fees unless the arbitrator finds that either the substance of your dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)).
If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section, you must notify Ensnare in writing within 30 days of the date you first accept these Terms (unless a longer period is required by applicable law). Your written notification must be mailed to Ensnare at the following address: Ensnare, Inc., Office of the General Counsel, 625 W. Adams, 19th Floor, Chicago, Illinois 60661. Your notification must include: (1) your name; (2) your mailing address; and (3) a statement that you do not wish to resolve disputes with Ensnare through arbitration. If you do not notify Ensnare in accordance with this section, you agree to be bound by the arbitration and group litigation waiver provisions of these Terms.
Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms shall be deemed void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms will remain in full force and effect as long as you continue to access or use the Products or Services. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to indemnify us, any limitations on our liability, any terms regarding ownership of intellectual property rights, and terms regarding disputes between us.
These Terms shall be governed in accordance with the laws of the State of Illinois. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS IN COOK COUNTY, ILLINOIS, FOR THE PURPOSE OF LITIGATION OF ALL CLAIMS AND DISPUTES THAT ARE NOT GOVERNED BY THE ABOVE ARBITRATION AGREEMENT.
Neither the course of conduct or course of dealing between the parties nor trade practice shall act to modify any provision of this Agreement. We may assign our rights and duties under this Agreement to any party at any time without notice to you. Your rights and duties under these Terms are not assignable by you without written consent of us. These Terms do not provide any third party with a remedy, claim, or right of reimbursement.
We reserve the right to make changes to these Terms. We will post notice of the new Terms to our Web Apps and Mobile Apps. You should ensure that you have read and agree with the most recent Terms when you use the Products and Services. Continued use of the Products and Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. IF YOU DO NOT AGREE WITH ANY CHANGES TO THE TERMS, YOU SHOULD STOP USING THE PRODUCTS AND SERVICES.
These Terms, as well as the HomeAware Beta User Field Trial Consent Form and HomeAware Privacy Statement, both of which are incorporated by reference, represent the entire agreement between you and Ensnare regarding the use of the Products and Services.