Span.IO, Inc. and its affiliates (collectively, “Span”, “us”, “we”, or “our”) provides (1) the Span website located at www.span.io, and all associated sites linked to www.span.io, including a website for installers that may be accessed at www.span.io/partner-portal (collectively, the “Website”), (2) software that may be downloaded to your mobile device, including smartphones and tablets, to access certain Span services (each, an “App”), and (3) certain services that can be accessed through the Apps and/or the Website (collectively the “Services”) which can be used to control Span’s proprietary smart electrical panel (the “Product”). The Website, Apps, and Services together are collectively known as the “Platform”.
These Terms of Service (the “Terms”) govern your access to and use of the Platform and Product. The term “you” as used in these Terms means any person or entity who accesses or uses the Platform and Product and accepts these Terms, including Owners, Authorized Users, Installers (all as defined below).
THESE TERMS ARE A LEGAL CONTRACT BETWEEN YOU AND SPAN. BY ACCEPTING THESE TERMS THROUGH A WEBSITE OR MOBILE APP, OR BY ACCESSING AND USING THE PLATFORM (INCLUDING THE WEBSITES) OR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND PRODUCTS AND TO ENTER INTO THIS AGREEMENT (SUBJECT TO SECTION 1(b) BELOW). IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCT FROM YOUR ACCOUNT AND CEASE ACCESSING OR USING THE PLATFORM AND PRODUCT, AND YOU ACKNOWLEDGE THAT YOUR PRODUCT WILL NO LONGER BE FUNCTIONAL.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PLATFORM AND OF THE PRODUCT CONNECTED TO THE PLATFORM. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PLATFORM AND PRODUCT.
SECTION 4 DESCRIBES IMPORTANT LIMITATIONS OF THE PLATFORM AND PRODUCT, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH SPAN. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1. OVERVIEW, GENERAL USE, TERM AND TERMINATION.
1.2. General Use.
By using the Platform and Product, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Platform and Product with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Platform and Product and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless Span if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Platform or Product at any time or in any manner or submit any information to Span or the Platform.
1.3. Term and Termination.
These Terms will remain in full force and effect as long as you continue to access or use the Platform or Product, or until terminated in accordance with the provisions of these Terms. At any time, Span may (i) suspend or terminate your rights to access or use the Platform, or (ii) terminate these Terms with respect to you if Span, in good faith, believes that you have used the Platform or Product in violation of these Terms, including any incorporated guidelines, terms or rules. If you transfer a Product to a new owner, your right to use the Platform with respect to that Product automatically terminates and the new owner will have no right to use the Product or Platform under your Account (as described below) and will need to register for a separate Account with Span and accept these Terms. Upon termination of these Terms, your Account and right to use the Platform will automatically terminate.
You can simply view certain portions of the Website, and not access or use any Services, by simply visiting and viewing the Website. You do not need an account to do so. However, to access the Services, certain portions of the Website, and the Apps, you must have an account with Span. Span provides several types of accounts, as set forth below.
2.2. Types of Accounts.
- Owner. If you are the owner of the residence in which the Product is installed, you are considered an “Owner.” When the Product is installed at your residence, the Installer will collect your email address from you, so that Span may send you an account invitation. After the Product has been installed and the installer has shared your email address with Span, Span will send an invitation to create an account. Your username will be the email to which the invitation was delivered, and you will create your own password as part of the registration process. As part of the registration process, we will also ask you to provide or confirm your name, the address of your residence, and your phone number. If you have purchased a residence where the Product has already been installed, please contact us at email@example.com so that we may help you set up your account. An Owner may designate authorized users (each an “Authorized User”) who may then make an account to access the Owner’s Product and use the Platform. Authorized Users shall have the ability to use the Platform and monitor and control the Product. Authorized Users may also have the ability to view information (including personal information) and content related to an Owner’s Product and the Platform, such as outage notifications and power usage history. Authorized Users are responsible for their own actions in connection with the Platform and Product, but the Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Product, Platform and Account. Thus, if you are an Owner, you should only authorize those individuals whom you trust.
- Authorized User. You are an “Authorized User” if an Owner has sent you an invitation to make an account to access and use the Platform and Product of the Owner. Authorized Users shall have the ability to use the Platform and monitor and control the Product. Authorized Users can view information and content related to an Owner’s Product and the Platform, such as outage notifications and power usage history. Authorized Users are responsible for their own actions in connection with the Platform and Product. An Owner can revoke your access as an Authorized User at any time.
- Installer. You are an “Installer” if you have completed the required training from Span and have qualified as a certified installer by Span to install the Product at certain residences for an Owner who has purchased the Product. When you become a certified installer, Span will send you an email invitation inviting you to create an account and to download the version of the App for Installers. To create an account, you must provide Span with your name and phone number, and you must create a password. Once you have created an account with Span, you will be able to access those certain portions of the Platform designated for access by Installers, including access to documentation to assist you in configuring the Product, a note-taking function so that you may upload information related to the installation, a photo collection function so that you may collect photos of the Product once installed, and certain features and functions to assist you in testing the Product. As an installer, you have special access to certain features and functions specific to Installers only, and you agree not to share your account credentials with anyone else.
2.3. Account Rules.
All the information that you provide when registering for an account and otherwise through the Platform must be accurate, complete and up to date. You may change, correct or remove any information from your account by either logging into your account directly and making the desired changes or contacting Span using the contact information at the end of these Terms requesting that we make the change. You are responsible for maintaining the confidentiality of your password, and you are responsible for all activities that occur using your password. You agree not to share your password, let others access or use your password or do anything else that might jeopardize the security of your password. You agree to notify Span if your password to the Platform is lost, stolen, if you are aware of any unauthorized use of your password on the Platform, or if you know of any other breach of security in relation to the Platform.
2.4. Electronic Communications.
By using the Platform, you consent to receiving electronic communications from Span. These electronic communications may include emails, push notifications, and other electronic notices about the Services, and other information concerning or related to the Platform and Product. These electronic communications are part of your relationship with Span. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing. Standard carrier data charges may apply to your receipt and use of such Electronic Communications.
3. RIGHT TO USE THE PLATFORM; THIRD PARTY PRODUCTS AND SERVICES; SUBMISSIONS; CHANGES; FEEDBACK.
3.1. License Grant to Platform.
Span provides content through the Platform that is copyrighted and/or trademarked work of Span or Span’s third-party licensors and suppliers or other users of the Platform (collectively, the “Materials”). Materials may include logos, graphics, video, images, software and other content. Subject to these Terms, and your compliance with these Terms, Span hereby grants you a limited, personal, revocable, non-exclusive and non-transferable license to use and to display the Materials and to use this Platform solely for your personal non-commercial use if you are an Owner or an Authorized User, and for your use in connection with any installation services provided by you as contracted by Span if you are an Installer. Except for the foregoing license, you have no other rights in the Platform or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Platform or Materials in any manner.
You may not: (i) modify, disassemble, decompile or reverse engineer the Platform, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, host, distribute or otherwise transfer the Platform to any third-party or use the Platform to provide time sharing or similar services for any third-party; (iii) make any copies of the Platform; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Platform, features that prevent or restrict use or copying of any content accessible through the Platform, or features that enforce limitations on use of the Platform; or (v) delete the copyright and other proprietary rights notices on the Platform.
3.3. Automatic Updates.
Span may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Platform and/or the Product’s software (“Updates”). These may be automatically installed without providing you any additional notice or receiving any additional consent. By using the Platform or the Product, you consent to the automatic Updates. If you do not want such Updates, your remedy is to terminate your Account and stop using the Platform and the Product. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Platform and the Product, and you agree to promptly install any Updates that Span provides you. Your continued use of the Platform and the Product is your agreement – (i) to these Terms with respect to the Platform and Product, and (ii) any changes or modifications that Span may make to these Terms over time.
3.4. Third Party Products and Services.
3.5. Your Submissions.
- Unauthorized Activities. When using the Platform, you agree not to: (a) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (b) use racially, ethnically, or otherwise offensive language; (c) discuss or incite illegal activity; (d) use explicit/obscene language or solicit/post sexually explicit images (actual or simulated); (e) post anything that exploits children or minors or that depicts cruelty to animals; (f) post any copyrighted or trademarked materials without the express permission from the owner; (g) disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation; (h) use any robot, spider, scraper or other automated means to access the Platform; (i) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; (j) alter the opinions or comments posted by others on this Platform; (k) post anything clearly false or misleading; (l) post anything unrelated to our business, products or services; (m) post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions. This list of prohibitions provides examples and is not complete or exclusive. Span reserves the right to (1) terminate access to your account, your ability to post to this Platform (or use the Services) and (2) refuse, delete or remove any Submissions; with or without cause and with or without notice, for any reason or no reason, or for any action that Span determines is inappropriate or disruptive to this Platform or to any other user of this Platform. Span may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Span’s discretion, Span will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Platform or on the Internet.
3.6. Privacy and Security.
Span may make changes to the content and Services offered on the Platform at any time. Span can change, update, or add or remove provisions of these Terms, at any time by posting the updated Terms on this Platform. By using this Platform after Span has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Platform.
3.8. Geographic Restrictions.
Span controls and operates this Platform from its headquarters in the United States of America and the Materials may not be appropriate or available for use in other locations. If you use this Platform outside the United States of America, you are responsible for following applicable local laws.
If you send or transmit any communications, comments, questions, suggestions, or related materials to Span, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Product, Platform, any Services offered through the Platform or Materials, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and Span is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant Span an exclusive, transferable, worldwide, royalty-free, fully paid-up license (including the right to sublicense) to use and exploit all Feedback as Span may determine in Span’s sole discretion. Notwithstanding the foregoing, you understand and agree that Span is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
4. INTENDED USE AND PRODUCT LIMITATIONS.
4.1. Intended Use.
The Platform is intended to be accessed and used for non-time-critical information and control of Product. While we try to make sure that the Platform is highly reliable and available, it is not intended to be reliable or available 100% of the time. The Platform is subject to sporadic interruptions and failures for a variety of reasons beyond Span’s control, including Wi-Fi failures, service provider uptime, mobile operator and network delays, among others. You acknowledge these limitations and agree that Span is not responsible for any damages allegedly caused by the failure or delay of the Platform.
4.2. No Critical Usage.
You acknowledge and agree that the Platform and Product is not certified for emergency response purposes, whether alone or interfaced with Third-Party Products and Services and Platform. Span makes no warranty or representation that the use of the Product or Platform will affect or increase your safety. You should not rely on the Product alone to control critical devices, such as devices that impact your health and safety. YOU AGREE THAT YOU WILL NOT RELY ON THE PLATFORM FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS OF YOUR PRODUCT AND ASSOCIATED DEVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY-NOTIFICATION SYSTEM. YOU UNDERSTAND THAT THE PRODUCT AND PLATFORM, WHETHER STANDING ALONE OR INTERFACED WITH THIRD PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. FURTHER, YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL SPAN DISPATCH EMERGENCY SERVICES TO YOUR HOME IN THE EVENT OF AN EMERGENCY.
4.3. Service Availability.
You acknowledge that the Platform, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Platform relies and is dependent on, among other things, the transmission of data through your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, or optional Cellular Backup service, for which neither Span nor any wireless or data carrier is 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 Platform being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee that you will receive notifications within any given time, or at all. The Platform 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. Span does not offer any specific uptime guarantee for the Platform.
4.4. System Requirements.
The Platform will not be accessible without: (i) a working wired or wireless local area network (LAN), e.g. Wi-Fi or Ethernet connection that is able to communicate with the Platform and Product; (ii) an Account; (iii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Service); (iv) always-on broadband Internet access in your home with bandwidth sufficient to support the Product; and (v) other system elements that may be specified by Span. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Platform may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Products and Platform. In addition, you acknowledge that Span may activate Bluetooth on your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Platform, enable communication with the Product connected to the same Span account and enable certain features.
4.5. Cellular Backup.
In the event of any Service Interruptions to your home’s Wi-Fi network or internet connection, the Platform may be unreliable or unavailable for the duration of the Service Interruption. The Product has a cellular backup function, and Span will attempt to use it to mitigate the Service Interruption, but Span cannot guarantee that such function will work 100% of the time.
4.6. Energy Savings.
Span does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Product or Platform. Actual energy savings and monetary benefits vary depending on factors beyond Span’s control or knowledge. From time to time, Span may use the Platform to provide you with information that is unique to you and your energy usage and suggest an opportunity to save money on energy bills or to utilize your energy resources more efficiently, if you adopt suggestions or features of the Product or Platform. We do this to highlight an opportunity based on our analysis and information about you and your historical energy consumption. You acknowledge that these suggestions are not a guarantee of actual savings and you agree not to seek monetary or other remedies from Span if you do not receive savings or if your savings differ from what is suggested by the Platform.
5. THIRD PARTY LIMITATIONS.
The Platform and Product relies on or inter-operate with Third-Party Products and Services. These Third-Party Products and Services are beyond Span’s control, but their operation may impact on, or be impacted by, the use and reliability of the Platform. You acknowledge and agree that: (i) the use and availability of the Platform is dependent on third-party product vendors and service providers, (ii) these Third-Party Products and Services may not operate in a reliable manner 100% of the time and they may impact on the way that the Platform operate, and (iii) Span is not responsible for damages and losses due to the operation of these Third-Party Products and Services.
5.2. Third-Party Service Providers Used by Span.
You acknowledge that Span uses third-party service providers to enable some aspects of the Platform, such as, for example, Tesla Powerwall for data storage, solar photovoltaic and home battery systems, Amazon Web Services for synchronization and communication, and mobile operating system vendors and mobile operators for mobile device notifications. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS THIRD-PARTY SERVICE PROVIDERS FROM ALL LIABILITY, DAMAGES OR LOSSES OF ANY KIND OR SORT, PERSONAL INJURY OR LOSS OF LIFE ARISING FROM YOUR USE OF THE PRODUCTS AND SERVICES.
5.3. Equipment, ISP and Operator.
5.4. App Stores.
You acknowledge and agree that the availability of the Apps is dependent on the third-party websites from which you download the Apps, e.g., the Google Play Store from Google or the App Store from Apple (each an “App Store”). You acknowledge that these Terms are between you and Span and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Apps from it. You agree to comply with such App Store terms and conditions, and your license to use the Apps is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
5.5. Third-Party Website Links and Referrals.
The Website may contain links to other websites operated by third parties and referrals to third-party vendors (“Third-Party Sites”). Such Third-Party Sites are not under our control. Span provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Sites. Your use of these Third-Party Sites is at your own risk.
5.6. Release Regarding Third Parties.
Span is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-Party Products and Services, Third-Party Sites, Equipment, ISP and Operators. Span hereby disclaims, and you hereby discharge, waive and release Span and its licensors and suppliers from any past, present and future claims, liabilities and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOUR 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 HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
6. OWNERSHIP AND INTELLECTUAL PROPERTY.
6.1. Span is a trademark of Span.IO, Inc. in the United States.
Other trademarks, names and logos on this Platform are the property of their respective owners. Unless otherwise specified in these Terms, all information and screens appearing on this Platform, including documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Span, Copyright © 2018-2021 Span.IO, Inc. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
- You agree to indemnify and hold Span and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) Span or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand arising out of or related to: (i) your use of this Platform or the use of this Platform and the Products and any use of the same by any person using your user name and/or password; (ii) your violation of these Terms; (iii) any Submissions or Feedback you provide; and (iv) your violation of any law or the rights of any third party.
- Nothing contained herein shall be construed to require any indemnification which would render or make this clause, in whole or in part, void and/or unenforceable under applicable law. Span reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Span, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Span’s prior written consent. Span will use reasonable efforts to notify you of any claim, action or proceeding for which it wishes to seek an indemnity in accordance with this section, upon becoming aware of it.
- Your use of this Platform and/or the Product is at your own risk. The Materials have not been verified or authenticated in whole or in part by Span, and they may include inaccuracies or typographical or other errors. Span does not warrant the accuracy of timeliness of the Materials contained on this Platform. Span has no liability for any errors or omissions in the Materials, whether provided by Span, our licensors or suppliers or other users. The Platform provides you with information (“Product Information”) regarding the Product and its connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Platform is not a substitute for direct access of the information in your residence.
- ANY WARRANTIES MADE BY SPAN ARE FOR THE BENEFIT OF THE USER OF THE PLATFORM ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE PLATFORM ARE LICENSED AND NOT SOLD. SPAN, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM, THE PRODUCT (OTHER THAN THE LIMITED WARRANTY), OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS PLATFORM, INCLUDING WITHOUT LIMITATION, THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS PLATFORM, THE PRODUCT, AND MATERIALS, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS PLATFORM IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SPAN DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER OR MOBILE DEVICE.
9. LIMITATION OF LIABILITY.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPAN BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, HOWEVER ARISING, EVEN IF SPAN KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
- SPAN’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO 9(a) ABOVE, ARISING FROM OR RELATED TO THE PRODUCT OR THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE FEES ACTUALLY PAID BY YOU TO SPAN OR SPAN’S AUTHORIZED RESELLER FOR THE PRODUCT IN THE PRIOR 12 MONTHS (IF ANY).
- SPAN DISCLAIMS ALL LIABILITY OF ANY KIND OF SPAN’S LICENSORS AND SUPPLIERS. SPAN SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE PLATFORM, OR FOR ANY USE OF SUCH MATERIALS.
- YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 9 SHALL APPLY EVEN IF SPAN IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILLFUL, WANTON, OR INTENTIONAL MISCONDUCT OF SPAN OR GROSS NEGLIGENCE OF SPAN IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
10. DISPUTE RESOLUTION, ARBITRATION, CLASS ACTION WAIVER.
Please read the following (this “Provision”) carefully. It affects your rights. Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at firstname.lastname@example.org. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Span. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. Please read this Provision carefully. It provides that all Disputes (defined below) between you and Span shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorneys’ fees).
For the purpose of this Provision, “Span” means Span and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Span regarding any aspect of your relationship with Span, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced and shall include any claims against other parties relating to services or products provided or billed to you (such as Span’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
10.3. Pre-Arbitration Claim Resolution.
For all Disputes, whether pursued in court or arbitration, you must first give Span an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Span at: Attn: Legal, 679 Bryant Street, San Francisco, CA 94107. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Span does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
10.4. Exclusions from Arbitration/Right to Opt Out.
Notwithstanding the above, you or Span may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Span, Attn: Legal, 679 Bryant St, San Francisco, CA 94107. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Span through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Span. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
10.5. Arbitration Procedures.
If this Provision applies and the Dispute is not resolved as provided above under Pre-Arbitration Claim Resolution, either you or Span may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision. For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules for Emergency Measures of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because the Platform and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
10.6. Arbitration Award.
The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
10.7. Location of Arbitration.
You or Span may initiate arbitration in either San Francisco County, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Span may transfer the arbitration to San Francisco, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
10.8. Payment of Arbitration Fees and Costs.
Span will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, fees for attorneys and/or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Span as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator.
10.9. Class Action Waiver.
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Span specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Platform can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
10.10. Jury Waiver.
You understand and agree that by entering into this Agreement you and Span are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Span might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the Dispute will be decided by a court.
This Provision shall survive the termination of your service with Span or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Span makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Span to adhere to the language in this Provision if a dispute between us arises.
Span prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Span, may result in immediate termination of your access to this Platform without prior notice to you. The Federal Arbitration Act, California state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Platform will be heard in the courts located in San Francisco County in the State of California. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Span’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Span and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Span about this Platform. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Span is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Span’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Span may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
If you have any questions about these Terms or otherwise need to contact Span for any reason, you can reach us at email@example.com.