TERMS AND CONDITIONS FOR SUBSCRIBERS TO ARRAY BY HAMPTON™ SERVICES
Thank you for choosing an ARRAY BY HAMPTON™ product (“Product”) offered by Hampton Products International Corporation (the “Company”). These terms and conditions (“Terms”) govern your use of the Product and the ARRAY BY HAMPTON™ cloud service and related services (“Services”). These Services enable you to realize all the features of your Product as described on our mobile applications and Website, https://arraylock.com (the “Website”). These Terms also apply to the software (“Software”) required for the Services, program instructions for the Product, and the ARRAY BY HAMPTON™ mobile app.
Please read these Terms before registering for the Services. By completing your registration, you are granted a non-transferable, non-exclusive, right to create an ARRAY BY HAMPTON™ account and become a registered user of the Services and Software (a "Subscriber"), the Services of which, unless otherwise specified, is free for a limited time from the date of registration of the Services (the “Initial Services Period”). Prior to expiration of the term of the Initial Period, renewal may be required to prevent interruption of the Services, as explained in section 4 below. The registration information you provide must be accurate and complete and updated as necessary. Your account is subject, in our sole discretion, to termination or suspension at any time. You shall be responsible for all uses of your account, including maintaining confidentiality of your login information and password, whether or not authorized by you, and securing your handheld mobile devices. You grant us the right to use your registration information and any other information you provide in connection with the operation of the Services. Your registration and use of the Services represents your agreement to conduct business electronically and to be bound by the Terms. 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. If you do not comply with the above statements, or do not agree with these Terms or to do business electronically, do not register or use the Services. The Terms are subject to change by the Company at any time; however, the most current version of the Terms will be available to you by clicking on the link identified on the Website or at https://arraylock.com/pages/legal. You are responsible to regularly review the Terms to ensure that you are aware of any changes. By continuing to use the Services after changes in the Terms have been posted on the Website, you agree to be bound by the most current version of the Terms. In the event of any conflict between these Terms and the terms of any other offer for the Services, these Terms will govern.
These Terms govern your use of the Services. Your purchase of any Product is governed by the limited warranty provided with that Product and by the applicable terms and conditions of sale. The software embedded in the Device, and any updates thereto, is licensed and governed by the end user license agreement for that Product (see below). Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. By using the Services, you are agreeing to any applicable warranty and license agreement.
- CHANGES/UPDATES TO THE SERVICES
The Company has the right, in its sole discretion, to modify, change, suspend, or discontinue the Services and/or Software and any related Fees (as defined below) at any time with or without notice. The Company may notify you of such changes via the Website, or if there are material changes to the Services and/or Software, the Company may notify you via e-mail, the ARRAY BY HAMPTON™ app, and/or the address of Product installation provided by you during registration. You agree to comply with all instructions, usage rules and documentation that we may provide from time to time with respect to the Services. Your continued use after such modification(s) or change(s) are made constitutes your acceptance of such Services, Software, and/or Fees. You agree that the Company will not be liable to you or any third party for any such modification, suspension, or discontinuance of the Services. However, if at any time you are not satisfied with the Services, Software, and/or Fees, you will always have the right to terminate the Services subject to the terms provided in Section 9 below. Software updates to your existing Services will be provided at no charge by the Company.
- USE OF SERVICES
Eligibility – You must be 18 years old, or the age of majority, as determined by your local residency or jurisdiction, to become a Subscriber and assume the obligations set forth in these Terms.
Service Area – Your service area will be dependent on your working cell phone coverage or Internet access.
Overall system requirements:
- Always-on active Internet Connection
- Local area network protected by a Firewall
- Wireless Router
- Wireless device with Android™ or iOS® for the Software
- A valid e-mail address, Facebook® account, or Google® account
Supported devices for the Software can be found at https://arraylock.com/pages/legal. Please note that all compatible wireless devices require a connection to the internet to utilize the Services for the Product.
Personal use of the Services – You may allow multiple individuals to use these Services through your ARRAY BY HAMPTON™ account subject to the Terms. However, you are responsible for ensuring that such users comply with the Terms. You may not assign your obligations under these Terms to any other party. Only the person whose name is on the ARRAY BY HAMPTON™ account will have the right to cancel or change Services. If you transfer your Product to a new owner, please note that your account is not transferable, and the new owner will have to register for a separate account to use the Services.
Use Outside of Designated Countries – Although our website is accessible worldwide, the Services are not available to all persons or in all countries. To the extent permissible by law, the Company accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Services in a country outside the USA. You will be bound by these Terms wherever you access or use the Services.
Safety and Access Control – It is your responsibility to exercise discretion and observe all safety measures that you deem necessary or as may be required by law to protect your personal well-being and personal and real property and to prevent unauthorized access, misuse of passwords, or misuse of any other information. You may only access and use the Website as authorized by the Terms and any other materials the Company provides to you. The Company is not liable to you for any unauthorized access or misuse of the Service, your ARRAY BY HAMPTON™ account, and Website. You may not use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of the Website. You may not attempt to gain unauthorized access to the Website, computer systems or networks connected to the Website, through hacking, password mining, or any other means. You agree that you will not engage in any activities with respect to the Website that are contrary to any applicable laws, rules, and regulations.
Service Interruptions – Since the Services are web based, it may be interrupted, delayed, or negatively affected by items outside of the control of the Company, including without limitation, Wi-Fi, internet and mobile network failures and coverage limitations, and service provider uptime, which may affect operation of the Product. The Company is not liable to you for interruptions of or problems with the Services caused by acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services obtained by you or the Company, virus attacks or hackers, failure of third party software (including, without limitation, e-business software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services; failure of access circuits to the Company’s computer network, unless such failure is caused solely by the Company; DNS (“Domain Name Server”) issues outside the direct control of the Company; Issues with FTP, POP3, SMTP, or any items relating to your access to the Website or the Services; your acts or omissions (or acts or omissions of others engaged or authorized by you, including, without limitation, custom scripting or coding (e.g., COI, Perl, HTML, ASP, etc.), any negligence, willful misconduct, or use of Website or Services in breach of this Agreement; e-mail or WebMail delivery and transmission; DNS propagation; or outages elsewhere on the Internet that hinder access to the Website or the Services. Your Services are dependent on you ensuring that your Third-Party Components are active and fully functioning. The Company is not liable due to any failure of your Third-Party Components. You acknowledge these limitations and agree that the Company is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications. Further, the Products and Services are not an emergency notification system and should not be used in this way. The Company is not responsible for contacting or dispatching emergency authorities to your home in the event of an emergency.
To the fullest extent allowed by law, the Company is not responsible for damage or liability caused by use of the Product and Services for purposes other than for which the Product and Services are designed or intended, use in improper environmental conditions, normal wear and tear or aging, improper repair, operation or maintenance or connections to improper voltage supply or, to the extent allowed by law, attempted repair by anyone other than a facility authorized by the Company to service or repair your Product.
Restrictions on Use – You agree that you will not copy, translate, rent, lease, sublicense, redistribute, or otherwise transfer the Software; and/or cause or permit reverse compilation, reverse engineering, or reverse assembly of all or any portion of the Software. Any Software that is made available to download with the Services are the copyrighted works of the Company and/or Third-Party Providers. Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (the "License Agreement"). An end user will be unable to install any Software that is accompanied by or includes a License Agreement, unless the end user first agrees to the terms of the License Agreement. Installation assistance, product support and maintenance, if any, of the Software is available from the Company and/or the Third-Party Providers, as the case may be.
SOFTWARE IS WARRANTED, IF AT ALL, IN ACCORDANCE WITH THE TERMS OF THE LICENSE AGREEMENT. EXCEPT AS SET FORTH IN THE LICENSE AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
- RENEWAL FEES
All renewal fees related to the Services (the “Fees”), when applicable, are due in advance of the Services being provided and will include all applicable sales tax and will be billed to you and transacted by the Company or its designated third-party provider. You agree to pay all charges and fees specified when you ordered the Service, including any monthly recurring or nonrecurring charges, taxes, fees, surcharges or other assessments applicable to the Service. The account that you provide for payment purposes will be automatically billed on each monthly or annual anniversary date of your registration dependent upon your selection of the account payment frequency until the Services are terminated.
Any renewal of your subscription will be billed at the time of the renewal. You will not receive billing statements. Billing statements may be accessed by you on your wireless device under “My Account” and such statements will contain the Fees charged and the date of such charge. Any questions or claims regarding billing can be directed to the Company’s customer service. If you wish to dispute a charge on your bill, please call the Company’s customer service within 120 days after the due date of the charge in question, otherwise you waive your right to dispute the charge.
You are responsible for immediately notifying the Company of any changes to your registration information including, but not limited to, billing address, name, credit card information, etc. You may notify Company on your wireless device under “My Account”.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER AS TO THE AVAILABILITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICE, THE WEBSITE, OR SOFTWARE AND ALL ASSOCIATED SERVICES AND INFORMATION OR FOR ANY THIRD-PARTY COMPONENTS PURCHASED BY YOU OR THIRD-PARTY SERVICE PURCHASED BY COMPANY. THE SERVICES ARE BEING PROVIDED TO YOU ON "AS-IS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED, OR STATUTORY.
THE THIRD-PARTY LINKS, RESOURCES, AND CONTENT AVAILABLE WITH THE SERVICES ARE NOT CONTROLLED BY THE COMPANY, AND THE COMPANY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH THIRD-PARTY LINKS, RESOURCES, AND CONTENT INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE COMPANY WILL NOT BE LIABLE FOR YOUR ACCESS TO, USE OF OR DOWNLOADING OF CONTENT AVAILABLE ON OR THROUGH, THE SERVICE OR THE WEBSITE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISLCAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
THE COMPANY DOES NOT AUTHORIZE ANY PERSON TO CREATE FOR IT ANY OBLIGATION OR LIABILTY IN CONNECTION WITH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, PERSONAL OR REAL PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE) AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO (a) THE USE OF OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (c) ANY OTHER MATTER RELATING TO THE SERVICES. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CANCEL AND DISCONTINUE USING THE SERVICES AND TO RECEIVE A REFUND FOR SERVICES NOT RENDERED. IN NO INSTANCE WILL THE COMPANY’S LIABILITY TO YOU EXCEED THE FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM AT ISSUE AND YOU AGREE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF THE COMPANY OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OF LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
BY REGISTERING FOR THE SERVICE, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD COMPANY, ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS, AND LICENSORS, AND THE RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ASSIGNS HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, DEMANDS, PROCEEDINGS, SUITS AND ACTIONS, INCLUDING ANY RELATED LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, FINES, JUDGMENTS, SETTLEMENTS, EXPENSES (INCLUDING ATTORNEYS' AND ACCOUNTANTS' FEES AND DISBURSEMENTS) AND COSTS INCURRED BY, BORNE BY OR ASSERTED AGAINST THE COMPANY TO THE EXTENT SUCH CLAIMS IN ANY WAY RELATE TO, ARISE OUT OF, OR RESULT FROM YOUR USE OF THE SERVICES.
- AGREEMENT TO MANDATORY ARBITRATION
Instead of suing in court, you and the Company agree to resolve all disputes and claims between us only by binding and bilateral arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. However, just as a court would, the arbitrator can award damages and relief, including any attorneys’ fees if authorized by law. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
References to the “Company,” “you” and “us,” for purposes of this agreement to arbitrate include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, heirs, guardians, successors and assigns, and all authorized or unauthorized users or beneficiaries of the Company’s services.
This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to (i) disputes and claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); (iii) claims that may arise after the termination of your relationship with the Company; and (iv) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class.
This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. In addition, and notwithstanding the other provisions of this arbitration agreement, either party may bring an individual action in small claims court.
The Federal Arbitration Act, 9 U.S.C. 1, et seq. (the “FAA”) governs the interpretation and enforcement of this agreement to arbitrate. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
Unless otherwise agreed to by you and the Company in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator who is licensed to practice law. The JAMS rules, including the selection of an arbitrator, filing, administration, discovery and arbitrator fees will be conducted under JAMS Comprehensive Arbitration Rules & Procedures, except as modified by this agreement or otherwise agreed to by you and the Company in writing. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this agreement to arbitrate conflicts with JAMS’s Consumer Minimum Standards, the JAMS’s Consumer Minimum Standards in that regard shall control. NOTHING IN THIS PARAGRAPH SHALL REQUIRE OR ALLOW YOU OR THE COMPANY TO ARBITRATE ON A CLASSWIDE OR CONSOLIDATED BASIS.
THIS AGREEMENT DOES NOT ALLOW CLASS ARBITRATIONS EVEN IF JAMS PROCEDURES OR RULES WOULD. RATHER, YOU AND THE COMPANY ARE ONLY ENTITLED TO PURSUE ARBITRATION ON AN INDIVIDAL BASIS, AND UNLESS YOU AND THE COMPANY AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PARTY’S CLAIMS WITH ANY OTHER PARTY’S CLAIMS, AND MAY NOT PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR COLLECTIVE PROCEEDING.
You and the Company are each responsible for their respective costs relating to counsel, experts, and witnesses, and any other costs relating to the arbitration. The Company, however, will pay for the arbitration administrative or filing fees, including the arbitrator and/or other JAMS case management fees, for any dispute of $75,000 U.S. Dollars or less, unless the claim is determined by the arbitrator to be frivolous. Otherwise, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses, Minimum Standards of Procedural Fairness regarding costs and payment apply.
Unless you and the Company agree otherwise in writing, the arbitration will take place in the county or Province of your billing address.
An arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself.
IF FOR SOME REASON THE PROHIBITION ON CLASS AND/OR REPRESENTATIVE ARBITRATIONS SET FORTH ABOVE CANNOT BE ENFORCED, THEN THE AGREEMENT TO ARBITRATE WILL NOT APPLY.
If for any reason a claim proceeds in court rather than through arbitration, you and the Company agree that there will not be a jury trial. You and the Company unconditionally waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement in any way. In the event of litigation, this paragraph may be filed to show a written consent to a trial by the court.
If you or the Company fail to comply with this arbitration provision, the breaching party shall be liable for the costs and attorneys’ fees incurred by the other party in enforcing compliance with the arbitration agreement.
- TERM AND CANCELLATION
Your Services will commence upon your acceptance of these Terms and will continue until cancellation by either you or the Company as provided herein. Any cancellation will take effect immediately and all access to the Services shall cease.
If you prepay for any Services that you cancel prior to the use of those Services, we will provide you with a credit to your account in the amount equal to the unused portion of the prepaid Services. No credits will be provided for termination within the Initial Services Period. No credits for partial days will be given. When your account is closed, we will review your account and refund any excess monetary payments. Unused promotional credits will not be refunded. The Company reserves the right to suspend or cancel the Services at any time if you fail to pay amounts owing to the Company when due, violate or breach any of the Terms, or for any other reason in its sole discretion. If your Services are suspended or cancelled, you will still be responsible for payment of all outstanding balances accrued through the cancellation date, including any fees described herein.
You will have a right, at any time, to cancel the Services upon notice to the Company’s customer service. Upon such notice, you will not receive a refund of any Fees paid during the month the Services were cancelled. In the event you have an annual subscription, you will receive a refund based on the number of unused days left in the Services in accordance with any applicable Fee promotion. All refunds will be made to the credit card on file. You are responsible for working directly with the credit card companies to ensure you receive such credits made by Company.
Waiver. Any waiver granted herein shall not be deemed effective unless in writing, executed by the party as to whom enforcement of the waiver is sought. A waiver by either party of any provision(s) hereof shall not be deemed a waiver as to any other provision hereof or of any subsequent breach by either party of the same or any other provision.
Waiver. Any waiver granted herein shall not be deemed effective unless in writing, executed by the party as to whom enforcement of the waiver is sought. A waiver by either party of any provision(s) hereof shall not be deemed a waiver as to any other provision hereof or of any subsequent breach by either party of the same or any other provision.
Severability. If any provision of these Terms is prohibited or unenforceable by any applicable law, the provision shall be ineffective only to the extent and for the duration of the prohibition of unenforceability, without invalidating any of the remaining provisions.
Survival. The obligations of you under these Terms that by their nature would continue beyond the termination of these Terms including, but not limited to, those sections relating to Fees and Indemnification will survive any termination.
Attorneys’ Fees. In the event the Company seeks legal action against you for collection of any Fees or to enforce its rights and your obligations under these Terms, the Company is entitled to recover from you its reasonable costs and expenses including, but not limited to, reasonable attorneys’ fees incurred as a result.
Remedies. The rights and remedies provided to the Company under these Terms are in addition to any other remedies available at law or in equity.
Governing Law and Venue. The United Nations Convention on the International Sale of Goods is explicitly excluded from this Agreement.
For Residents of the US: These Terms and any action related thereto or related to Services shall be governed, controlled, interpreted, and defined by and under the laws in effect in the State of California, without regard to conflicts of law principles. Venue for any action, claim or proceeding pertaining to this Agreement shall be California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts for the purpose of such action.
Notwithstanding the foregoing and pursuant to Section 8 of this Agreement, the Federal Arbitration Act, 9 U.S.C. 1, et seq. (the “FAA”) governs the interpretation and enforcement of this Agreement to arbitrate. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
Intellectual Property Rights. ARRAY, HAMPTON, ARRAY BY HAMPTON, and all related logos are trademarks or registered trademarks of the Company in the United States and other countries. The Company may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights, including patents, trademarks, and copyrights, or to prevent loss of data or damage to its servers or Services.
Entire Agreement. These Terms represent the entire agreement and understanding of the parties with respect to the subject matter of these terms and conditions and supersedes all prior agreements and understandings between the parties, whether oral or written, with respect to this subject matter.
If you have any questions regarding these Terms or any terms referenced herein, please contact the Company in any manner as follows:
Address: Hampton Products International Corporation, 50 Icon, Foothill Ranch, CA 92610-3000. Attention: ARRAY BY HAMPTON™ Care agent.
BY USING THE ARRAY BY HAMPTON™ SERVICES, I REPRESENT THAT I HAVE READ AND UNDERSTAND THESE ENTIRE TERMS, AND I AGREE TO ALL THE TERMS AND CONDITIONS OF THE SERVICES AS STATED ABOVE.
End-User License Agreement
This End-User License Agreement (“Agreement”) between you and Hampton Products International Corporation (the “Company” or “Hampton”) details how the software (the “Licensed Software”) can be used. The Licensed Software is provided in the form of pre-installed, embedded software in your ARRAY BY HAMPTON™ product (“Product”), and the form of a software application downloaded and installed on your mobile device (the “App”). Changes to the terms of the Agreement and updates to the Licensed Software (see below) may be provided by the Company or an authorized affiliate at any time with or without notice, and use of the Licensed Software after such updates constitutes your acceptance of such changes to the then-current version of this Agreement.
If you do not agree to the terms of this Agreement you may return the Product, in its original, unused condition, within thirty (30) days of the date of purchase, or the return period provided by your place of purchase, whichever is longer, for a refund in accordance with our returns policy as set forth in the warranty for your Product. In such case, you will also cease to use and remove any App in your possession related to such Product. By using the Product, creating a user account, downloading or using the App, clicking “I Agree” or checking any boxes corresponding to this Agreement on our App or our websites, you agree to be bound by the terms of this Agreement.
Permitted License Uses and Restrictions
Subject to the terms and conditions of this Agreement, you are granted a limited non-transferable, non-exclusive license to download and run the Licensed Software on a single compatible Product that you own or control, solely for your own personal non-commercial purposes in order to operate the Product.
You shall not license, sell, rent, lease, transfer, assign, distribute, republish, host, outsource, disclose or otherwise commercially exploit the Licensed Software or make the Licensed Software available to any third party or where it could be used by multiple devices at the same time unless authorized by the Company.
You shall not and agree not to enable others to, copy, modify, make derivative works of, disassemble, attempt to derive the source code of, decrypt, reverse compile or reverse engineer any part of the Product or Licensed Software, except as and only to the extent any foregoing restriction is prohibited by applicable law.
To the fullest extent allowed by law, you hereby agree to indemnify and hold harmless the Company from any liability arising out of or relating to the misuse of your Account, Product, Licensed Software, App or the Service, or your negligence, willful misconduct or breach of this Agreement.
Application, Product and Service Usage
All right, title, and interest, including all intellectual property rights, in and to the Licensed Software shall be owned and retained by the Company or its suppliers. Any rights not expressly granted by the Company in the Agreement are reserved. All Licensed Software is licensed and not sold, and any reference to “sale” or “purchase” shall mean the purchase of a license to the Licensed Software as set forth herein.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE LICENSED SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LICENSED SOFTWARE AND SERVICE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY AND ITS AFFILIATES DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS RELATING TO THE LICENSED SOFTWARE, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. THE COMPANY DOES NOT WARRANT THAT USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE LICENSED SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE, THEN TO THE MAXIMUM EXTENT ALLOWED BY LAW, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO ONE (1) YEAR FROM THE DATE OF DOWNLOAD OR PURCHASE, WHICHEVER IS EARLIER. SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED SOFTWARE AND SERVICES HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLE HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE LICENSED SOFTWARE THAT CAUSED SUCH DAMAGE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
You agree that, unless prohibited by law, any claim or cause of action arising out of or related to use of the Licensed Software, or this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred, regardless of any time limit set forth in any statute or law to the contrary.
You acknowledge that the Product and Licensed Software are not certified for emergency response, and should not be used for this purpose. The Company does not monitor emergency notifications, and is not responsible for dispatching emergency services to your home.
This Agreement and the licenses granted hereunder are effective on the date you first install or use the Licensed Software and shall continue unless and until this Agreement is terminated by the Company pursuant to this section. The Company may terminate this Agreement immediately upon notice in the event that you materially breach any of the terms hereof. You may terminate this Agreement effective immediately upon providing the Company with written notice. Upon termination, the license granted hereunder shall terminate and you shall immediately destroy any copies of the Licensed Software in your possession, but the terms of this Agreement which are intended to survive termination will remain in effect.
You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Licensed Software, Product, nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. By using the Licensed Software you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Updates and Modifications
The Licensed Software may, without additional notice, check for updates that are available for automatic download and installation to your Product and let the Company know the Licensed Software is successfully installed. If you do not want such updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive updates automatically. You acknowledge that you may be required to install updates to use the Product and the Licensed Software and you agree to promptly install any updates that the Company provides. Your continued use of the Product is your consent to this Agreement.
You agree that the Company may modify this Agreement from time to time, and that your right to access the Services and use the Licensed Software is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. By continuing to access the Licensed Software or Services after modification become effective, you agree to be bound by the revised Agreement. If you do not agree to the new Agreement, please stop using the applicable Licensed Software.
Controlling Law and Severability
Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. All waivers by the Company will be effective only if in writing. Except as provided under the Arbitration section below, any action under or relating to this Agreement shall be brought solely in the state and federal courts located in California with sole venue in the courts located in Los Angeles or Orange County and each party hereby submits to the personal jurisdiction of such courts, except that the Company may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect. Any notice to you may be provided by email.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled. Except as otherwise expressly provided in this Agreement, any modifications of this Agreement must be in writing and signed by the Company. The parties acknowledge that they require that this Agreement be drawn up in the English language only.
To the maximum extent permitted by law, you agree that the all disputes and claims arising out of, or relating to, this Agreement, or your use of the Licensed Software and Product (including the arbitrability of any claim or dispute and the enforceability of this section), shall be determined exclusively by final and binding arbitration. Provided however, that you agree that the terms of this arbitration section do not apply to determinations as to the ownership of any intellectual property rights in the Licensed Software or Product.
CLASS ACTION WAIVER: Except as otherwise provided in this section, 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 the Company specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of this section, as specified below, this class action waiver will not apply to you. Neither you, nor any other user of the Licensed Software can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding arising out of or relating to this Agreement or the Licensed Software without having complied with the opt-out requirements below.
Except as expressly set forth in this section, you and the Company may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate the Company’s or any of its licensor’s intellectual property rights, or may cause continuing or irreparable harm to the Company (including, but not limited to, any breach that may impact the Company‘s or its licensor’s intellectual property rights, or a breach by reverse engineering), the Company may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction.
Notwithstanding the above, you or the Company 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 THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Section by mailing written notification to the Company. 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 the Company through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with the Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or in small claims court. In addition, this arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.