These iotGizmo Terms of Service were last updated on June 30, 2018.
iotGizmo Corporation(“iotGizmo”) provides products and services to enable users to benefit from smart energy technology. These products and services include a website for user accounts that can be accessed at www.iotgizmo.com
(“Site”),services accessible through the Site (“Web Applications”), software that may be downloaded to Your smartphone or tablet to access services (“Mobile Applications”), and subscription services, including services that can be accessed using the Web Applications and Mobile Applications (“Subscription Services”), all for use in conjunction with iotGizmo hardware products (“Products”) and in other ways that iotGizmo provides. The term “Services” means any of the Sites, Web Applications, Mobile Applications, and Subscription Services.Some Products and Services can be used together or in ways that integrate with other products and services
Agreement to Terms
These Terms of Service (“Terms”) are a legally binding agreement made between you, whether personally or on behalf of an entity (“You”, “Your”, “Yourself”) and iotGizmo, each a “Party” or collectively, the “Parties”, concerning Your access to and use of the Products and Services. By accepting these terms through a Site, Web Applications or Mobile Application, or by accessing and using the Services (including the Sites) or Products, You are accepting and agreeing to these terms on behalf of Yourself or the entity You represent in connection with the access and use. You hereby agree to the use of electronic signatures, acknowledgements, acceptances, contracts, orders, and other records, and to electronic delivery of notices, policies, and records of transactions initiated or completed by iotGizmo or via the Site or Services. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records or to payments or the granting of credits by any means other than electronic means. These Terms give You specific legal rights, and You may also have other legal rights in addition, which vary from jurisdiction to jurisdiction.
THESE TERMS REQUIRE THE USE OF MANDATORY BINDING ARBITRATION TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE PRODUCTS AND SERVICES AND SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT AND DISCONTINUE USE IMMEDIATELY.
The information provided by the Products and Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject iotGizmo to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to use the Products and Services from other locations do so on their own initiative and are solely responsible for compliance with local laws and regulation, if and to the extent such laws or regulation are applicable.
You accept these Terms through a Site, Web Application or Mobile Application, or by accessing or using the Products or Services, and only if You are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. You may use the Products and Services only if You have the legal capacity to form a binding contract with iotGizmo. 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 You represent. 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 represent and warrant that You are over the age of 13 (or equivalent minimum age in the jurisdiction where You reside), and in the event You are between the age of 13 (or equivalent minimum age in the jurisdiction where You reside) and the age of majority in the jurisdiction where You reside, that You will only use the Products and Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Products and Services by individuals under the age of 13 (or equivalent minimum age in the jurisdiction where You reside) is strictly prohibited and is a violation of these Terms. The Products and Services are not available to any users previously prohibited by iotGizmo from using the Products and Services.
If You have any questions or concerns regarding the Products, the Services, or these Terms, please contact iotGizmo. You understand and agree that customer service and any customer care and support offered and provided by iotGizmo is not a 911 service or dispatch center, an emergency service provider or dispatch service, or a lifesaving solution for people at risk in their home or otherwise. PLEASE DO NOT CONTACT CUSTOMER SERVICE OR ANY CUSTOMER CARE AND SUPPORT OFFERED BY IOTGIZMO WITH ANY LIFE/SAFETY EMERGENCY, MEDICAL EMERGENCY, OR ANY OTHER EMERGENCY. IF YOU HAVE ANY SUCH EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, 911 OR APPROPRIATE EMERGENCY RESPONSE SERVICE.
To use the Services and certain Products or features, You must register for a user account (“Account”) and provide certain information about Yourself as prompted by the applicable registration form. You represent and warrant that: (i) all required registration information You submit is truthful, accurate, current and complete; (ii) You will maintain the accuracy of such information and promptly update such information as necessary; and (iii) Your use of the Products and Services will not violate any U.S. or other applicable law or regulation (e.g., You are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You agree to keep Your Account login information confidential and are entirely responsible for all activities that occur under Your Account. You agree to immediately notify iotGizmo of any unauthorized use, or suspected unauthorized use, of Your Account or any other breach of security. iotGizmo is not liable for any loss or damage arising from Your failure to comply with the above requirements.
If You provide information that is untrue, inaccurate, not current or incomplete, iotGizmo reserves the right to suspend or terminate Your Account and all current or future use of the Site or Services. iotGizmo reserves the right to remove, reclaim, or change a username You select if iotGizmo determines, in it’s sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
The individual who creates an Account is the “Owner” of that Account and is the Owner of the Products associated with that Account. Individuals who are authorized to access an Owner’s Products and Services are “Authorized Users.” Authorized Users may have the ability to use the Services and monitor and control the Products (for example, an Authorized User can change Your heating and cooling schedule or turn Your lights on or off). Authorized Users may also have the ability to view information (including personal information) and content across all of an Owner’s Products and Services (for example, an Authorized User will receive mobile alerts). Authorized Users are responsible for their own actions in connection with the Products and Services, but Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Products, Services and Account. If You are an Owner who invites or enables an Authorized User, You acknowledge and agree that such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use Your Products and Services set out above. As a result, if You are an Owner, You should authorize only those individuals that You trust to access Your Account, Products, and Services
Certain materials may be displayed with the Services including, but not limited to text, graphics, articles, photographs, video, images, and illustrations (“Content”). The Content also includes information that You and other users provide iotGizmo in the course of using the Services (“User Submissions”), which iotGizmo may use to provide, maintain and improve the Services. Some content may be visible to others (for example, if the Service allows You to upload, post, or otherwise share content). You may also be able to post feedback, comments, questions, or other information on the Sites. You are solely responsible for all Content that You upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that You contribute in any manner to the Services; You represent and warrant that You have all rights necessary to do so, in the manner in which You contribute it; and You license to iotGizmo all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by You: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. iotGizmo reserves the right to remove any Content from the Services at any time, for any reason including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if iotGizmo is concerned that You may have breached the immediately preceding sentence, or for no reason at all.
When posting a review, You must comply with the following criteria: (i) You should have firsthand experience with the person/entity being reviewed; (i) Your review should not contain offensive profanity, or abusive, racist, offensive, or hate language; (iii) Your reviews should not contain discriminatory references based on race, religion, gender, national origin, age, marital status, sexual orientation, or disability; (iv) Your reviews should not contain references to illegal activity; (v) You should not be affiliated with competitors if posting negative reviews or comparing the Products and Services to competitor offerings; (vi) You should not make any conclusions as to the legality of conduct; (vii) You may not post any false or misleading statements; and (viii) You may not organize a campaign encouraging others to post reviews, whether positive or negative.
iotGizmo may accept, reject or remove reviews in its sole discretion. iotGizmo has absolutely no obligation to screen reviews, or to delete reviews, even if anyone considers reviews objectionable or inaccurate. Reviews are not endorsed by iotGizmo and do not necessarily represent iotGizmo’s opinions or the views of any of iotGizmo’s affiliates or partners. iotGizmo does not assume liability for any review or for any claims, liabilities, or losses resulting from any review.
By posting a review, You hereby grant iotGizmo with a perpetual, worldwide, nonexclusive, irrevocable, royalty-free, sublicensable, assignable, and transferable right and license to access, reproduce, display, or otherwise use Your User Submissions (including all related intellectual property rights) solely in connection with providing You the Services. Furthermore, You understand that iotGizmo retains the right and sole discretion to reformat, modify, create derivative works of, excerpt, and translate any User Submissions submitted by You. You also hereby do and shall grant each user of the Services a non-exclusive license to access and use Your User Submissions through the Services and as permitted through the functionality of the Services and under these Terms. For clarity, the foregoing license grant to iotGizmo does not affect Your ownership of or right to grant additional licenses to the material in Your User Submissions, unless otherwise agreed in writing.
iotGizmo reserves the right, but not the obligation, to: (i) monitor the Site for violations of these Terms; (ii) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; (iii) without limitation and in our sole discretion, refuse, restrict access to, or limit the availability of, or disable any Account or User Submissions or any portion thereof; (iv) without limitation, notice, or liability, and in iotGizmo’s sole discretion, remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to iotGizmo systems; and (v) otherwise manage the Sites in a manner designed to protect iotGizmo rights and property and to facilitate the proper functioning of the Product and Services.
Privacy and Security
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 iotGizmo) are responsible for ensuring that You comply with any applicable laws when You use the Products and Services.
iotGizmo cares about the integrity and security of Your personal information. However, iotGizmo cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use Your personal information for improper purposes. You acknowledge that You provide Your personal information at Your own risk.
Access to Services
Subject to these Terms, iotGizmo grants You a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by (i) using the Web Applications in connection with, and solely for the purpose of, controlling and monitoring the Products You own or are authorized to control and monitor or otherwise accessing a service explicitly provided by iotGizmo for Your use (the “Permitted Purpose”), and (ii) installing and using the Mobile Applications solely on Your own handheld mobile device (e.g., iPhone, iPad, or Android smartphone) and solely for the Permitted Purpose, and (iii) if separately authorized, access the Service through an authorized third party service including but not limited to Amazon AlexaTM
and Google AssistantTM
virtual personal assistant and the interface provided by iotGizmo.
iotGizmo reserves the right, in its sole discretion, at any time, to modify, suspend, or discontinue the Products or Services or any part thereof with or without notice. iotGizmo has no obligation to update any information on the Site or available from the Product or Services. You agree that iotGizmo will not be liable to You or to any third party for any price change, modification, suspension, or discontinuance of the Products or Services or any part thereof. Nothing in these Terms will be construed to obligate iotGizmo to maintain and support the Products or Services or to supply any corrections, updates, or releases in connection herewith.
iotGizmo may from time to time develop software patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product and/or Services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If You do not want such Updates, Your remedy is to terminate Your Account and stop using the Services. If You do not terminate a previously created Account, You may receive Updates automatically. You acknowledge that You may be required to install Updates to use the Products and Services and You agree to promptly install any Updates iotGizmo provides. Your continued use of the Products and Services is Your agreement (i) to these Terms with respect to the Products, Services and Software; and (ii); any change or updates that iotGizmo may make to these Terms over time.
The rights granted to You in these Terms are subject to the following restrictions: (i) You agree not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise make commercially use of the Products or Services except under adherence to a separate written agreement with iotGizmo; (ii) You agree not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Products or Services; (iii) You agree not to access the Products or Services in order to build a similar or competitive service or product; (iv) 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 or by any means; (v) You agree not to interfere with, bypass, circumvent, or otherwise disable any security measures used by the Products and Services and not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Products, the Software, or any other system, device or property; (vi) You agree not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Services or violate the regulations, policies, or procedures of such networks; (vii) You agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by iotGizmo; (viii) You agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Products or Services; (ix) You agree not to engage in the collection of usernames, email addresses or account information in order to contact other users and not to undertake any other unauthorized use of the Services including but not limited to advertising on the Site or offering to sell goods and services; (x) You agree not to make improper use of iotGizmo support services including but not limited to submission of false reports regarding but not limited to abuse or misconduct, or impersonation of other users, or trick, defraud or mislead customer support to reveal sensitive account information about other users; and (xi) You agree not to use any information obtained from the Product or Services to harass, intimidate, threaten, or annoy another person including without limitation any iotGizmo employee, manager, director, officer, advisor or agent. Any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
Certain items of independent, third party code may be included in the Web Applications and/or Mobile Applications that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits Your rights under, or grants You rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts Your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
Mobile Application License
Your agreement to abide by and maintain adherence to these Terms also entitles you to a license to use the iotGizmo Mobile Applications. You acknowledge and agree that the availability of the Mobile Applications is dependent on the third-party websites from which You download the Mobile Applications, e.g., the App Store from Apple or the Android app market from Google (each an “App Store”). You acknowledge that these Terms are between You and iotGizmo and not with an App Store. Each App Store may have its own terms and conditions to which You must agree before downloading Mobile Applications from it. You agree to comply with, and Your license to use the Mobile Applications is conditioned upon Your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply. You acknowledge and agree that the Application Distributors are third-party beneficiaries of the terms and conditions in this Mobile Application license contained in these Terms and that each Application Distributor will have the right and will be deemed to have accepted the right, to enforce the terms and conditions in this Mobile Application License contained in these Terms against You as a third-party beneficiary thereof.
You acknowledge that each Application Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Applications. You represent and warrant that 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 You are not listed on any U.S. government list of prohibited or restricted parties
As part of the functionality of the Services, You may link Your Account with online accounts you have with third-party service providers by either: (i) providing Your third-party account login information through the Services; or (ii) allowing iotGizmo to access Your third-party account, as is permitted under the applicable terms and conditions that govern Your use of each account. You represent and warrant that You are entitled to disclose Your third-party account login information to iotGizmo and/or grant iotGizmo access to Your third-party account, without breach by You of any of the terms and conditions that govern Your use of the applicable third-party account, and without obligating iotGizmo to pay any fees or making iotGizmo subject to any usage limitations imposed by the service provider of the third-party account. By granting iotGizmo access to any third-party accounts, You understand that: (i) iotGizmo may access, make available, and store any content that you have provided to and stored in your third-party account (the “Social Network Content”) so that it is available on and through the Products and Services via your Account. Depending on the third-party accounts you choose and subject to the privacy settings that you have set in such third-party accounts, personally identifiable information that you post to those third-party accounts may be available on and through your Account with iotGizmo.
iotGizmo makes no effort to review any Social Network Content for any purpose including but not limited to accuracy, legality or non-infringement and iotGizmo is not responsible for any Social Network Content. You acknowledge and agree that iotGizmo may access your address book associated with a third-party account and your contact lists stored on devices accessing the Services solely for the purposes of identifying and informing You of those contacts who have also registered for the Services.
Please note that if a third-party account becomes unavailable or iotGizmo access to such account is terminated by the third-party service provider, then Social Network Content may no longer be available on and through the Product and Services. You will have the ability to disable the connection between your Account and the third-party accounts at any time by contacting us
or through your account settings on the Site. iotGizmo will make reasonable efforts to delete any information stored by iotGizmo that was obtained through such third-party accounts, except potentially the username and profile picture associated with any User Submissions under Your Account.
NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT WITH SUCH THIRD-PARTY PROVIDERS.
Fees and Payment
You agree to provide current, complete an accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information including but not limited to email address, payment method, and payment card expiry date, so that iotGizmo can complete Your transactions and contact You as needed. Sales tax will be added to the price of purchases as deemed required by iotGizmo. iotGizmo may change prices at any time.
You agree to pay all charges at the prices then in effect for Your purchases and You authorize iotGizmo to charge Your chosen payment provider for any such amounts upon placing Your order. iotGizmo reserves the right to correct any errors or mistakes in pricing, even if iotGizmo has already requested or received payment.
iotGizmo reserves the right, in its sole discretion, to refuse any order placed through the Site or to limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same Account, the same payment method, and/or orders that use the same billing or shipping address. iotGizmo reserves the right to limit or prohibit orders that, in its sole discretion, appear to be placed by dealers, resellers, buying or purchasing agents, or distributors.
Returns and Refunds
Please review the iotGizmo return policy included in the iotGizmo Limited Warranty
posted on the Site prior to making any purchases.
Limitations of iotGizmo Products and Services
The Services are intended to be accessed and used for non-time-critical information and control of iotGizmo Products. While iotGizmo aims for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond iotGizmo’s control, including Wi-Fi intermittency, service provider up time, mobile notification delays, among others. You acknowledge these limitations and agree that iotGizmo is not responsible for any damages allegedly caused by the failure or delay of the Services. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that You will not be entitled to any refund or rebate for such suspensions. iotGizmo does not offer any specific up time guarantee for the Services.
You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with Third-Party Products or Services are not certified for emergency response, life-safety or other critical issues. iotGizmo makes no warranty or representation that use of the Products or Services will affect or increase any level of safety.
It is Your responsibility to ensure that You have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. 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 Services. In addition, You acknowledge that iotGizmo may activate Bluetooth on Your smartphone or tablet, with or without prior notification, in order to facilitate proper operation of the Services, enable communication with iotGizmo Products connected to the same iotGizmo account, and enable certain features.
You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. iotGizmo cannot and does not guarantee that You will receive notifications in any given time frame or at all. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR IOTGIZMO PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. There is no way for iotGizmo to provide specific information relating to a situation in Your home or elsewhere. You acknowledge that it is Your responsibility to educate Yourself on how to respond to information and to respond according to the specifics of Your situation.
Unless explicitly promising a “guarantee,” iotGizmo does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Products or Services or any feature of them. Actual energy savings and monetary benefits vary with factors beyond iotGizmo’s control or knowledge. From time to time, iotGizmo may use the Services to provide You with information that is unique to You and Your energy usage and suggest an opportunity to save money on energy bills if You adopt suggestions or features of the Product or Services. iotGizmo does this to highlight an opportunity based on our analysis and information about You and Your household. You acknowledge that these promotions are not a guarantee of actual savings, and You agree not to seek monetary or other remedies from iotGizmo if Your savings differ.
All information publicly posted or privately transmitted through the Services is the sole responsibility of the person from which (or from whose Account) such Content originated and iotGizmo will not be liable for any errors or omissions in any Content. iotGizmo cannot guarantee the identity of any other users with whom You may interact in the course of using the Services. Additionally, iotGizmo cannot guarantee the authenticity of any data that users or merchants may provide about themselves. You acknowledge that all Content accessed by You using the Services is at Your own risk and You will be solely responsible for any damage or loss to any party resulting therefrom. iotGizmo cannot control and has no duty to take any action regarding how You may interpret and use the Content or what actions You may take as a result of having been exposed to the Content, and You hereby release iotGizmo from all liability for You having acquired or not acquired Content through the Services.
You warrant, represent and agree that You will not contribute any Content or otherwise use the Products or Services in a manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of iotGizmo; (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) jeopardizes the security of Your iotGizmo Account or anyone else’s Account (such as allowing someone else to log in to the Services as You); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist, Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; or (xii) denigrates or disrupts any network capacity or functionality.
It is Your responsibility to install and use the Products and Services pursuant to the applicable manual and instructions. If a Product or Service is not properly installed, or if a Product or any of its sensors are outside the detection range or hindered or obstructed by walls, furniture, personal property or other things, You may experience false alarms or detection failures. It is Your responsibility to test the Products once installed to be sure the Products (and any related sensors, components and peripherals) are functioning and communicating as required, and then regularly test and maintain the Products after installation.
Limitations of iotGizmo Products and Services Due to Third Parties
iotGizmo Services rely on or inter operate with third party products and services. These third-party products and services are beyond iotGizmo’s control, but their operation may impact or be impacted by the use and reliability of the iotGizmo Services. You acknowledge and agree that: (i) the use and availability of the Services 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 the way that the iotGizmo Services operate, and (iii) iotGizmo is not responsible for damages and losses due to the operation of these third-party products and services.
You acknowledge that iotGizmo uses third party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization, and communication through wifi networks and the internet, and mobile device notifications through mobile operating system vendors and mobile carriers. You acknowledge that the Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through Your wi-fi network, enabled wireless device (such as a smartphone or tablet) and broadband internet access, for which neither iotGizmo nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including but not limited to 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 AGREE NOT TO RELY ON THE SERVICES FOR ANY LIFE SAFETY OR TIME-CRITICAL PURPOSES. FURTHER, 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 .
The Sites may contain links to other web sites operated by third parties (“Third Party Sites”) and referrals to third party vendors (“Referred Vendors”) via, without limitation, banners and other advertising. Such Third-Party Sites and Referred Vendors are not under iotGizmo control. iotGizmo provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant, guarantee or make any representations with respect to the accuracy, reliability, safety, or security of such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at Your own risk. iotGizmo will not be a party to or in any way be responsible for monitoring any transaction between You and Third-Party providers of products or services.
The Products and Services may use various open or commonly available standards or means to communicate and work with smart or connected devices that are also similarly used by other systems or services not manufactured by iotGizmo, including Wi-Fi, Bluetooth, and IP devices. HOWEVER, SMART, CONNECTED OR OTHER DEVICES AND RELATED SERVICES (“THIRD-PARTY PRODUCTS AND SERVICES”) THAT ARE NOT DESIGNATED BY IOTGIZMO AS COMPATIBLE WITH THE PRODUCTS AND SERVICE MAY NOT WORK WITH THE PRODUCTS AND SERVICES, OR MAY HAVE LIMITED FEATURES OR FUNCTIONALITY, EVEN IF DESIGNED, SPECIFIED OR MARKETED TO OPERATE USING THE SAME OR SIMILAR STANDARDS OR MEANS OF COMMUNICATION. YOU AGREE ONLY TO USE THIRD-PARTY PRODUCTS AND SERVICES DESIGNATED BY IOTGIZMO AS COMPATIBLE WITH THE PRODUCTS AND SERVICES. FURTHER, YOU AGREE THAT IOTGIZMO IS NOT RESPONSIBLE FOR, AND YOU HEREBY RELEASE AND HOLD IOTGIZMO HARMLESS FROM AND AGAINST, ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM, RELATED TO, OR CAUSED BY, ANY ATTEMPT BY YOU TO CONNECT, OR YOUR CONNECTION AND USE OF, THIRD-PARTY PRODUCTS OR SERVICES THAT ARE NOT CERTIFIED BY IOTGIZMO AS COMPATIBLE WITH THE PRODUCTS AND SERVICES.
iotGizmo is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third Party Products and Services, Third Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. iotGizmo hereby disclaims and You hereby discharge, waive and release iotGizmo 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 WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.
Ownership and Intellectual Property
You acknowledge that all intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in the Product, Software, and Services (i.e., the Sites, Web Applications, and Mobile Applications) are owned by iotGizmo or its affiliates or licensors. All source code, databases, functionality, website designs and all other content and the trademarks, service marks, and logos contained in the Products and Services are owned and controlled by iotGizmo or licensed to iotGizmo, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions.
Your possession, access, and use of the Product, Software, and Services do not transfer to You or any third party any rights, title, or interest in or to such intellectual property rights. iotGizmo and its affiliates, licensors and suppliers reserve all rights not granted in these Terms. The Services are licensed to You, not sold, under these Terms.
You agree that Your User Submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place iotGizmo under any fiduciary or other obligation. iotGizmo may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to You. You also agree that iotGizmo does not waive any rights to use similar or related ideas previously known to iotGizmo, developed by its employees, or obtained from other sources.
You may only copy parts of the Services including this Site onto Your own computer for Your own personal use. You may not use the content of the Services in any other public or commercial way nor may You copy, aggregate, translate, post, or incorporate any of the content of the Products or Services into any other work, including Your own web site without the prior express written permission of iotGizmo. You must have a license from iotGizmo before You can post or redistribute any portion of the Services. Other than with respect to Your User Submissions, iotGizmo retains full and complete title to all content on the Services, including any downloadable software and all data that accompanies it. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services or any content therein.
THE WARRANTY FOR THE PRODUCT IS SET FORTH IN THE LIMITED WARRANTY ON THE SITE AND APPLIES ONLY TO PHYSICAL GOODS PURCHASED FROM IOTGIZMO.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IOTGIZMO DISCLAIMS ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PHYSICAL GOODS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IOTGIZMO ALSO LIMITS THE DURATION OF ANY APPLICABLE IMPLIED WARRANTIES OR CONDITIONS TO THE DURATION OF THIS LIMITED WARRANTY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM IOTGIZMO OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
IOTGIZMO ONLINE SERVICES (“SERVICES”) PROVIDE YOU INFORMATION (“INFORMATION”) REGARDING YOUR PHYSICAL GOODS OR OTHER PERIPHERALS CONNECTED TO YOUR PHYSICAL GOODS (“PERIPHERALS”). THE TYPE OF PERIPHERALS THAT MAY BE CONNECTED TO YOUR PHYSICAL GOODS OR SERVICES MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL INFORMATION IS PROVIDED FOR YOUR CONVENIENCE, “AS IS”, AND “AS AVAILABLE”. IOTGIZMO DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT INFORMATION WILL BE AVAILABLE, ACCURATE, RELIABLE OR COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE. YOU USE ALL INFORMATION, THE SERVICES, AND THE PHYSICAL GOODS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND IOTGIZMO DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING BUT NOT LIMITED TO YOUR WIRING, FIXTURES, ELECTRICITY, HOME, PERIPHERALS, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE INFORMATION, SERVICES, OR PHYSICAL GOODS.
Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. If You choose to access the Sites or Services from outside a country in which iotGizmo supports the Product and Services listed here: United States and Canada ("Target Country/Countries"), You do so on Your own initiative and You are solely responsible for complying with applicable local laws in Your country. You understand and accept that the Sites are not designed for use in a non-Target Country and some or all of the features of the Sites may not work or be appropriate for use in such a country. To the extent permissible by law, iotGizmo accepts no responsibility or liability for any damage or loss caused by Your accessing or use of the Sites or iotGizmo Products in a non-Target Country. You will be bound by these Terms wherever You access or use the Sites or the Services.
The Site or Services may contain links to affiliate websites, and iotGizmo may receive an affiliate commission for any purchases made by You on the affiliate website using such links.
The Site, Products and Services cannot and do not contain professional advice. The information provided by iotGizmo is provided for general information and education purposes only and is not a substitute for professional advice. Accordingly, before taking any actions based upon such information, iotGizmo encourages You to consult with the appropriate professionals.
The Site or Services may contain User Submissions in the form of feedback or testimonials regarding our Products and/or Services. These User Submissions reflect the real-life experiences and opinions of such users. These User Submissions do not reflect the opinions or views of iotGizmo. iotGizmo is not affiliated with these users who provide User Submissions, and users are not paid by iotGizmo or otherwise compensated for their User Submissions. Furthermore, the experiences are personal to those particular users, and may not necessarily be representative of all users of our Products and/or Services. iotGizmo does not claim, and You should not assume, that all users will have the same experiences. YOUR INDIVIDUAL
RESULTS MAY VARY.
YOU UNDERSTAND AND AGREE THAT SOME OF THE PRODUCTS AND SERVICES ARE NOTIFICATION, SIGNALING AND DETECTION PRODUCTS AND SERVICES. THOSE PRODUCTS AND SERVICES DO NOT ELIMINATE OCCURRENCES OF EVENTS INCLUDING BUT NO LIMITED TO FIRES, FLOODS, BURGLARIES, ROBBERIES, AND MEDICAL ISSUES. FURTHER, YOU UNDERSTAND AND AGREE THAT THOSE PRODUCTS AND SERVICES MAY NOT AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES, AND, THEREFORE, IOTGIZMO MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY OR FITNESS FOR PARTICULAR PURPOSE) THAT THOSE PRODUCTS AND SERVICES WILL SO AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES.
Waiver of Subrogation
You should protect against 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 APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE IOTGIZMO AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
LIMITATION OF LIABILITY
Nothing in these Terms and in particular within this "Limitation of Liability" clause shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law. If such laws apply to you, then you may have additional rights.
IOTGIZMO MAINTAINS CERTAIN DATA THAT YOU TRANSMIT TO THE SITE FOR THE PURPOSE OF MAINTAINING THE PERFORMANCE OF THE SITE, PRODUCTS AND SERVICES, AS WELL AS DATA RELATING TO YOUR USE OF THE SITE, PRODUCTS AND SERVICES. ALTHOUGH IOTGIZMO PERFORMS REGULAR ROUTING BACKUPS OF DATA, YOU ARE SOLELY RESPONSIBLE FOR ALL DATA THAT YOU TRANSMIT OR THAT RELATES TO ANY ACTIVITY YOU HAVE UNDERTAKEN USING THE SITE, PRODUCTS AND SERVICES. YOU AGREE THAT IOTGIZMO HAS NO LIABILITY TO YOU FOR ANY LOSS OR CORRUPTION OF SUCH DATA, AND YOU HEREBY WAIVE ANY RIGHT OF ACTION AGAINST IOTGIZMO ARISING FROM ANY SUCH LOSS OR CORRUPTION OF SUCH DATA.
IN NO EVENT WILL IOTGIZMO, INCLUDING SUBSIDIARIES, AFFILIATES, AND ALL OF OUR RESPECTIVE EMPLOYEES, MANAGERS, DIRECTORS, OFFICERS, ADVISORS, AND AGENTS (COLLECTIVELY THE “IOTGIZMO PARTIES”) BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST TIME, LOST REVENUE OR PROFITS, LOST SAVINGS, LOST OPPORTUNITY OR LOST OR CORRUPT DATA, ARISING FROM OR RELATING TO THE PRODUCTS OR SERVICES EVEN IF IOTGIZMO PARTIES KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND THE IOTGIZMO PARTIES’ TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGE ARISING FROM OR RELATED TO THE PRODUCTS OR SERVICES WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY THE ORIGINAL PURCHASER IN THE PRIOR TWENTY-FOUR MONTHS FOR THE PRODUCTS OR SERVICES AT ISSUE.
IOTGIZMO PARTIES MAKE NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND IOTGIZMO PARTIES WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. IOTGIZMO PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES AND WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY SUGGESTIONS OR RECOMMENDATIONS OF PRODUCTS OR SERVICES OFFERED OR PURCHASED THROUGH THE SITE OR SERVICES.
IOTGIZMO PARTIES DISCLAIM ALL LIABILITY OF ANY KIND OF IOTGIZMO’S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL IOTGIZMO PARTIES BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED REGARDING USE OF OR EXPOSURE TO ANY CONTENT POSTED, EMAILED, ACCESSED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PRODUCTS AND SERVICES.
YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY EVEN IF IOTGIZMO PARTIES ARE 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, INTENTIONAL OR RECKLESS MISCONDUCT OF IOTGIZMO PARTIES OR GROSS NEGLIGENCE OF IOTGIZMO PARTIES IN THOSE JURISDICTIONS THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD IOTGIZMO PARTIES AND ALL OFOUR LICENSORS AND SUPPLIERS HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE IOTGIZMO PARTIES, LICENSORS, AND SUPPLIERS ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORIZED USER’S USE OF THE PRODUCTS OR SERVICES; (B) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS;(C) ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES SET FORTH IN THESE TERMS; (D) ANY OVERT HARMFUL ACT TOWARD ANY OTHER USER OF THE SITE WITH WHOM YOU CONNECTED VIA THE SITE (E) ANY USER SUBMISSIONS OR FEEDBACK YOU PROVIDE; OR (F) YOUR OR YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY AND TRADEMARK RIGHTS (COLLECTIVELY ”THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE IOTGIZMO PARTIES’, LICENSORS, AND SUPPLIERS ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE IOTGIZMO PARTIES,LICENSORS, AND SUPPLIERS ASSESSED OR FOUND AGAINST ANY OF THE IOTGIZMO PARTIES, LICENSORS, AND SUPPLIERS OR MADE BY ANY OF THE IOTGIZMO PARTIES, LICENSORS, AND SUPPLIERS RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”).
YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE IOTGIZMO PARTIES, LICENSORS, AND SUPPLIERS APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE IOTGIZMO PARTIES, LICENSORS, AND SUPPLIERS. HOWEVER, 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.
FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE IOTGIZMO PARTIES, LICENSORS, AND SUPPLIERS OR GROSS NEGLIGENCE OF THE IOTGIZMO PARTIES, LICENSORS, AND SUPPLIERS IN THOSE JURISDICTIONS THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, AN UNAUTHORIZED USER, A SPOUSE, PARTNER, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE OR INSURANCE COMPANY.
iotGizmo reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify iotGizmo and You agree to cooperate with our defense of such claims. You agree not to settle any such claim without iotGizmo’s prior written consent. iotGizmo will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.
Dispute Resolution and Arbitration
iotGizmo and You agree to arbitrate all disputes and claims (“Dispute”) that arise from or relate to these Terms or the Products or Services in any way. This agreement to arbitrate is intended to be broadly interpreted, including but not limited to claims arising out of or relating to any aspect of the relationship between the Parties that is created by or involves these Terms or the Products or Services, regardless of the legal theory; claims that arose before You accepted these Terms (such as claims related to disclosures or the marketing of the Products or Services or the process for seeking approval to use the Products or Services;claims that may arise after the termination of Your use of the Products or Services or any agreement between us; claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us; and claims brought by or against iotGizmo’s respective subsidiaries, parent companies, members, affiliates, as well as the respective officers, directors, employees, managers, advisors, agents, predecessors, successors, and assigns of these entities, You, and iotGizmo.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT WE ARE EACH (I) WAIVING THE RIGHT TO A TRIAL BY JURY; (II) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (III) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER.
This arbitration agreement does not preclude either of us from bringing an individualized action in small claims court. Except as otherwise provided herein, these Terms also do not preclude either Party from litigating in court to compel arbitration, seek an individualized preliminary injunction or temporary restraining order pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator in any court that has jurisdiction. Nor does this arbitration agreement bar You from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against iotGizmo on Your behalf. In addition, You or iotGizmo may seek injunctive or other equitable relief to protect Your or its trade secrets and intellectual property rights or to prevent loss or damage to its services in any court with competent jurisdiction. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
If either Party intends to seek arbitration of a Dispute, that Party must provide the other with notice in writing. The notice to iotGizmo should be sent to: iotGizmo Corporation, 255 Old New Brunswick Rd, Suite N350, Piscataway, NJ, 08854. iotGizmo will send notice to You at the email and/or mailing addresses associated with Your Account. Your notice to iotGizmo must (i) provide Your name, mailing address, and email address; (ii) describe the Dispute; and (iii) state the relief You are requesting. If we are unable to reach an agreement to resolve the Dispute through informal negotiations within 90 days after the notice is received, You or iotGizmo may commence arbitration.
The arbitration will be governed by the Consumer Arbitration Rules ("AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules are available online at www.adr.org
or by calling the AAA at 1 800 778 7879. If the AAA is unavailable, the parties shall agree to another arbitration provider or the court shall appoint a substitute. Unless You and iotGizmo both agree otherwise, any arbitration hearings will take place in Middlesex County, New Jersey, USA. If the value of Your claim is $10,000 or less, iotGizmo agrees that You may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of Your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide, except that issues relating to the scope and enforce ability of this arbitration provision or the arbitrability of Disputes are for the court to decide. The arbitrator may consider but is not bound by rulings in other arbitrations between iotGizmo and iotGizmo users. The arbitrator can award the same individualized damages and relief that a court can award. Judgment on the award may be entered by any court having jurisdiction.
The AAA’s fee schedule is subject to change and may be found in the AAA Rules (available online at www.adr.org
or by calling the AAA at 1 800 778 7879). iotGizmo will pay all AAA filing, administrative, and arbitrator fees for any arbitration that iotGizmo commences. If You commence arbitration against iotGizmo, the allocation of AAA fees will be governed by the AAA Rules (unless the law of Your state requires iotGizmo to pay all such fees). If the arbitrator finds that either the substance of Your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the arbitrator may direct You to reimburse iotGizmo for any amounts that iotGizmo paid on Your behalf.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND IOTGIZMO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties 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 section’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.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Middlesex County, New Jersey, USA. and the parties hereby consent to waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction of such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms.
The parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration: (i) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (ii) any Dispute relating to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for injunctive relief. Such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
In no event shall any Dispute brought by either Party related in any way to the Site or Products or Services be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Notwithstanding the foregoing, iotGizmo may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
Term and Termination
These Terms shall remain in full force and effect so long as You continue to access or use the Products or Services, or until terminated in accordance with the provisions of these Terms. At any time, iotGizmo may (i) suspend or terminate Your rights to access or use the Services, or (ii) terminate these Terms with respect to You if iotGizmo in good faith believes that You have used the Products or Services in violation of these Terms, including any incorporated guidelines, terms or rules. iotGizmo reserves the right to, in its sole discretion and without notice or liability, deny access to and use of the Services (including but not limited to blocking certain IP addresses) to any person for any reason or for no reason, including without limitation for breach of any representation, warranty or covenant contained in these Terms or of any applicable law or regulation. iotGizmo may terminate Your Account or Your use and participation in the Site or delete Your Account and any content or information that You posted at any time, without warning, in iotGizmo’s sole discretion.
If iotGizmo terminates Your Account for any reason, You are prohibited from registering and creating a new Account under Your name, a fake or borrowed name, or the name of any third party, even if You may be acting on behalf of the third party. In addition to terminating or suspending Your Account, iotGizmo reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal and injunctive redress.
If You transfer a Product to a new owner, Your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Product or Services under Your Account and will need to register for a separate Account with iotGizmo and accept these Terms. Upon termination of these Terms, Your Account and Your right to use the Services will automatically terminate.
These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or Your use of the Products and Services shall be governed by the laws of the State of New Jersey, USA. without giving effect to any conflict of laws that may provide the application of the law of another jurisdiction.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS IN OR FOR MIDDLESEX COUNTY, NEW JERSEY, USA. FOR THE PURPOSE OF LITIGATING OR ARBITRATING ALL SUCH CLAIMS OR DISPUTES.
Entire Agreement / Severability
These Terms constitute the entire agreement between You and iotGizmo regarding the use of the Services and purchase of the Products. Any failure by iotGizmo to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. 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. There is no joint venture, partnership, employment or agency relationship created between You and iotGizmo as a result of these Terms or Your use of the Products and/or Services.
The obligations in sections: Limitations of iotGizmo Product and Services, Limitations of iotGizmo Product and Services due to Third Parties, Ownership and Intellectual Property, Warranty Disclaimers, Other Disclaimers, Waiver of Subrogation, Limitation of Liability, Indemnification, Dispute Resolution and Arbitration, Governing Law, Entire Agreement/Severability and Assignment will survive any expiration or termination of these Terms.
These Terms and any associated rights or obligations, may not be assigned or otherwise transferred by You without iotGizmo’s prior written consent. These Terms may be assigned by iotGizmo without restriction. These Terms are binding upon any permitted assignee.
iotGizmo may provide notifications to You as required by law or for marketing or other purposes via (at its option) email to the primary email associated with Your Account, mobile notifications, hard copy, or posting of such notice on www.iotgizmo.com
. iotGizmo is not responsible for any automatic filtering that may apply to Your email notifications.
Modifications and Corrections
iotGizmo reserves the right to alter Product and Services offerings, specifications, information, availability, and pricing at any time, with or without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents or with respect to the Products and Services.
The iotGizmo address is provided here.
Copyright © 2016–2018, iotGizmo Corporation. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Products and Services are the property of iotGizmo or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of iotGizmo or such respective holders.