Last Modified: September 20, 2018
1. WHAT THESE TERMS COVER
Unless we specify a different naak entity in a Service supplement, naak is referred to as “naak,” “we,” “us” or “our”. The terms of these Terms apply in addition to any specific notifications, terms, conditions, limitations or disclaimers displayed in the terms for supplements to the Services. Unless otherwise specified in these Terms, the Terms are intended for use within the United States only. These Terms are designed for individuals 18 years of age or older. PLEASE NOTE THAT WE DO NOT PROVIDE WARRANTIES FOR THE SERVICES EXCEPT AS EXPLICITLY STATED HEREIN. THESE TERMS ALSO LIMIT OUR LIABILITY. THESE APPLICABLE TERMS ARE THROUGHOUT, BUT PRIMARILY IN SECTIONS 15, 17, AND 18, WE ASK YOU TO READ THEM CAREFULLY.
2. RELIANCE ON INFORMATION POSTED & DISCLAIMER
The material & information contained in our Services is provided for general information purposes only and does not constitute legal or professional advice and should not be relied upon as such.
We do not accept any responsibility for any loss which may arise from accessing or reliance on the information in the Services and to the fullest extent permitted by applicable laws, rules, statutes, and regulations (collectively “Laws”), we exclude all liability for loss or damages direct or indirect arising from use of the Services. Please refer to Section 15 (Limitation of Liability) herein for naak’s full limitation of liability.
3. END USER LICENSE, USER CONDUCT, AND INTELLECTUAL PROPERTY OWNERSHIP
naak grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited and revocable license to download and use the Services for personal use only in accordance with these Terms (“User License”). naak does not grant you any other rights whatsoever in relation to these Services or the material contained therein. All other rights are expressly reserved by naak. You do not acquire any ownership of naak’s intellectual property rights in any part of the Services, products, or software by virtue of these Terms or your use of the Services, products, or software. You agree that through your use of the Services you will comply with all applicable Laws. You further agree that your use of the Services will comply with any applicable third party terms of agreement when using the Services (e.g. you must ensure your use of the Services is not in violation of any wireless data service agreement).
All materials (including the organization and presentation of such material) on these Services (the “Materials”) are the sole and exclusive property of naak and may be protected by intellectual property Laws including, but not limited to, Laws relating to copyrights, trademarks, tradenames, internet domain names, and other similar rights. Any other use of these Materials without naak's prior written permission is strictly prohibited. The Materials may not be used or copied for your own use, non-commercial, personal or educational purposes or otherwise. You may not create derivative works from or otherwise exploit the Materials in any way.
4. SERVICE ACCOUNT, PASSWORD, AND SECURITY
You may be required to create a separate account for your use of the Services, your (“Service Account.”) You agree to keep all of your passwords and accounts secret. You shall be solely responsible for taking precautionary steps to protect Personally Identifiable Information (as defined herein) stored on your devices as required by your use of the Services, including without limitation, password-protecting your mobile device. We shall not be responsible for any losses arising from the financial loss or theft of Personal Information due to unauthorized or fraudulent transactions related to the Services.
Furthermore, you are entirely responsible for any and all activities that occur under your Service Account. Only you may use your Service Account. naak will not be liable for any loss that you may incur as a result of someone else using your passwords or accounts, either with or without your knowledge. However, you will be held liable for losses incurred by naak or another party due to someone else using your accounts or passwords. You may not use anyone else’s Service Account at any time without the explicit advance written permission of the Service Account holder.
5. WHEN YOU MAY USE THE SERVICES
You may start using the Services as soon as you have finished the required installation and/or sign-up process(es). No withdrawal right or other “cooling off” period applies to the Services and you waive any applicable “cooling off” period, except if a Law requires a “cooling off” period despite your waiver and even when a service starts right away.
6. HOW YOU MAY USE THE SERVICES
In using the Services, you will:
7. CODE OF CONDUCT
In using the Services, you may not:
If the Services allow for user generated content, you will not use any form of automated device or computer program that enables the submission of postings without the express advance written consent of naak. naak reserves the right, at its sole discretion, and without any obligation to do so, to review and remove user-created services and content at will and without notice and delete content and accounts. naak reserves the right, at its sole discretion, to ban participants or terminate access to all or a part of the Services.
We encourage you to not share information that others could use to harm you. naak is not responsible for the content of any user-created posting, listing or message. The decision to view content or engage with others is yours. We advise you to use your judgment.
You are responsible for protecting your computer against interference, spyware or viruses that may be encountered for downloaded items from the Services. We recommend you install a virus protection program on your computer and keep it up to date.
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the products, software, or Services or make the products, software, or Services available to any third party, (b) copy or use the products, software, or Services for any purpose other than as explicitly permitted herein, (c) use any portion of the products, software, or Services on any device or computer other than the applicable naak product that you own or control or in accordance with these Terms, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the products, software, or Services, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the products, software, or Services (except to the extent applicable Laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact naak and provide naak an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the products, software, or Services to any third party without the explicit prior written approval of naak for each such proposed release. You shall agree to abide by any additional restrictions if and as required by the supplemental terms for any specific part of the Services, as applicable.
9. ENERGY PROVIDER DATA FEED
One feature of the naak Services may allow you to retrieve past and ongoing information about your energy bill and usage from your energy company. If this feature is available and you use this feature of the Services, you consent to naak retrieving this information on your behalf. naak’s ability to retrieve such data depends on the availability of this data from your energy company.
If you provide feedback to naak, you give to naak, without notice, approval, charge, or any form of compensation to you, the right to use, share and commercialize your feedback in any way and for any purpose. You also give to third parties, without notice, approval, charge, or any form of compensation to you, all patent rights needed for their products, technologies and services to use or interface with any specific parts of a naak Services that includes the feedback. You will not give feedback that is subject to a license that requires naak to grant any rights or make any payments to third parties because the feedback was incorporated into our software, documentation or other products. These rights survive these Terms.
If you receive software from us as part of the Services, your use of that software is under the terms of the license that is presented to you for acceptance for that software. If there is no license presented to you, or unless otherwise stated in these Terms, then we grant you the right to use the software only for the authorized use of the Services on that number of devices stated in your Services offer. We reserve all other rights to the Services, including, but not limited to, the software. You will not disassemble, decompile, reverse engineer, or work around any technical limitations in any of the Services, including, but not limited to, software included in the Services, except and only to the extent that the Law expressly permits this activity. Unless we explicitly notify you otherwise in advance in writing, your license to use the software will end on the date your Services end, and you must promptly uninstall the software. We may disable the software after the date the Services end. The software is subject to United States export Laws. You must comply with all domestic and international export Laws that apply to the software. These Laws include restrictions on destinations, end users and end use.
13. AUTOMATIC SOFTWARE UPDATES
Your continued use of the Services is your agreement to all Updates (as defined herein). naak or its manufacturers and/or licensors may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and any related products and software (collectively herein "Updates"). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to all automatic Updates by continued use of the Services and any related software. If you do not want such Updates, your remedy is to stop using the Services. If you do not cease using the Services, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Services and any related products and software and you agree to promptly install any Updates naak or its manufacturers and/or licensors provides.
14. DATA ANALYTICS
If you receive data analytics reports from us as part of the Services, your use of the reports are under the terms of the license that is presented to you for acceptance for that data analytics report. If there is no license presented to you, or unless otherwise stated in these Terms, then we grant you the right to use the data analytics and reports only for the authorized use of directly providing your customer with the Services they requested or have authorized. Or in the case of an end user, you may use your own data for your personal benefit only. Unauthorized commercial use is strictly prohibited without the explicit prior consent in writing from naak. We reserve all other rights to the data analytics reporting. You are not permitted to resell or reuse the data in any manner or for any other purpose. You will not disassemble, decompile, reverse engineer, or work around any technical limitations in any data analytics included in the Services, except and only to the extent that applicable Laws expressly permit this activity. Unless we notify you otherwise in advance in writing, your license to use the data analytics reports may end on the date your Services end. We may disable the data analytics reports after the date the Services end. The data analytics is subject to United States export Laws. You must comply with all domestic and international export Laws that apply to the data analytics. These Laws include restrictions on destinations, end users and end use.
15. LIMITATION OF LIABILITY
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES AND THE MATERIALS INCLUDING, WITHOUT LIMITATION, ANY OF THE INFORMATION CONTAINED THEREIN. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER NAAK OR ITS SUBSIDIARIES, NOR NAAK'S SUPPLIERS, LICENSORS, AUTHORIZED RESELLERS, OR MANUFACTURERS AND THE EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, AGENTS, AND REPRESENTATIVES OF SAME (COLLECTIVELY “NAAK” FOR THE REMAINDER OF THIS SECTION) WILL BE LIABLE TO YOU OR ANY THIRD PARTY;
(A) FOR ANY PERSONAL INJURY OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES WHATSOEVER, (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES (WHETHER DIRECT OR INDIRECT) FOR LOST DATA OR LOST REVENUE OR PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, THE USE OR INABILITY TO USE THE SERVICES, BUSINESS INTERRUPTION, DAMAGE TO YOUR OTHER SYSTEM(S), OR ANY OTHER COMMERCIAL OR PHYSICAL DAMAGES OR LOSSES), IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THESE TERMS, INCLUDING WITHOUT LIMITATION, YOUR USE OR MISUSE OF, RELIANCE UPON, ACCESS TO (OR LACK THEREOF), OR EXPLOITATION OF THE SERVICES, OR ANY RIGHTS GRANTED TO YOU HEREUNDER), EVEN IF YOU HAVEBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER LEGAL THEORY). SUBJECT TO THE OBLIGATIONS OF NAAK UNDER ANY NON-EXCLUDABLE TERMS AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL NAAK'S LIABILITY FOR ALL DAMAGES EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO NAAK FOR THE SERVICES AND ANY RELATED SOFTWARE OR PRODUCT(S). THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND NAAK AND SHALL APPLY TO ALL CLAIMS OF LIABILITY, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
Without in any way intending to revise or limit the foregoing language, not all features of the Services are available to all users in all regions. For example, your current energy provider may not be participating in automated data feeds to the Services. We accept no liability for energy usage data provided to you by the Services, including, but not limited to, the accuracy, latency, granularity or availability of the energy usage data. Further, we are not responsible for any recommendations that the Services may give to you, any actions you take as a result of recommendations that we give to you, or any costs incurred or associated with any actions you take as a result of any recommendations we give you. Finally, we are not liable, under any circumstances, for your energy bill or any fluctuations in the amount of your energy bill.
At naak’s request, you will defend, hold harmless, and indemnify naak and its directors, officers, employees, agents, subsidiaries, affiliates, manufacturers, licensors, and suppliers and each of their successors from and against all third-party claims, actions, demands, proceedings, damages, costs and liabilities of any kind (collectively, “Claims”) to the extent that the Claims arise out of or relate to : (i) your use of the Services and any products (including any third party claims made in connection with, or arising out of, your use of the Services and any products and applicable software); (ii) your materials added to the Services, product, or applicable software; (iii) your negligent acts, errors, or omissions; (iv) your violation of applicable Laws in the use of the Services; or (v) your breach of these Terms or any supplemental terms for a specific product or software as part of the Services or terms of sale.
17. WE MAKE NO WARRANTY/WARRANTY DISCLAIMER/MANUFACTURER WARRANTY
We provide the Services “as-is,” “with all faults” and “as available.” We do not guarantee the accuracy or timeliness of information available from the Services. We and our affiliates, resellers, third party partners, distributors and vendors (collectively, the “naak parties”) give no express warranties, guarantees or conditions other than as expressly indicated herein. You may have additional consumer rights under your local Laws that these Terms cannot change. WE EXCLUDE ALL IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, RELIABILITY, TITLE, QUIET ENJOYMENT, ACCURACY, MEETING YOUR REQUIREMENTS, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NAAK DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES, PRODUCTS, OR SOFTWARE AND EXCLUDES ALL WARRANTIES THAT SAME WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, SECURE, ERROR-FREE/THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS.
YOU WILL BE SOLELY RESPONSIBLE FOR (AND NAAK EXCLUDES) ANY AND ALL CLAIMS, LOSS, LIABILITY, OR DAMAGES, AND COSTS INCURRED OR SUFFERED BY YOU INCLUDING WITHOUT LIMITATION TO YOUR ELECTRICAL SYSTEM; SOLAR ELECTRICITY SYSTEM; HVAC SYSTEM; LIGHTING; PLUMBING; HOME; SERVICES, PRODUCTS, AND SOFTWARE; OTHER PERIPHERALS CONNECTED DIRECTLY OF INDIRECTLY TO THE SERVICES, PRODUCT, OR SOFTWARE; COMPUTER; MOBILE DEVICE; AND ALL OTHER ITEMS, PEOPLE, AND PETS IN YOUR HOME; RESULTING FROM YOUR USE OR MISUSE OR INABILITY TO USE THE SERVICES, PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCTS.
Without in any way limiting the foregoing, the product (device) part of the Services by carbonTRACK and distributed by naak is protected against defects in material and workmanship for the duration stated in the fully executed purchase contract and the carbonTRACK standard manufacturer’s warranty is passed through by naak to the end user. The terms of carbon TRACK’s standard manufacturer’s warranty as of the date of these Terms is as follows:
carbonTRACK Manufacturer’s Warranty
Nothing in this warranty purports to modify or exclude the conditions, warranties and undertakings, and other legal rights, under relevant USA Competition and Consumer Law.
1. GENERAL TERMS & CONDITIONS
a) Subject to the terms and conditions specified in this warranty:
i) carbonTRACK Pty Ltd (carbonTRACK) warrants that the carbonTRACK product will be free from defects in material and or workmanship for the period of three (3) years, commencing on the date of installation (the Warranty Period);
ii) for the Warranty Period, carbonTRACK agrees to, at its option and as the sole and exclusive remedy, whether claims are based on contract, tort or otherwise, repair or replace or provide credit to the original purchaser of the product this warranty is attached to or relates to, for any carbonTRACK product which has defects in materials or workmanship resulting in the carbonTRACK product not performing in accordance with its specification. carbonTRACK will determine whether or not the Product is performing in accordance with its specifications.
b) For the purpose of this warranty, a carbonTRACK product is a hardware product which:
i) was manufactured by or on behalf of carbonTRACK,
ii) bears the carbonTRACK logo or trade mark,
iii) was sold by an authorized carbonTRACK reseller / distributor,
iv) was purchased and installed for use in the Territory, but
v) does not include hardware or software which is installed with, or packaged or sold with a carbonTRACK product unless that is itself a carbonTRACK product.
2. WARRANTY TERMS & CONDITIONS
a) The warranty only applies, if:
i) proof of purchase of the carbonTRACK product is provided to the reasonable satisfaction of carbonTRACK.
ii) all carbonTRACK installation procedures have been correctly adhered to, including but not limited to completion of online activation and commissioning requirements.
iii) The carbonTRACK product was installed by an installer authorized by carbonTRACK or naak inc.
iv) the carbonTRACK product was suitable for the use and installation to which it was applied.
v) the carbonTRACK product has not been altered or tampered with.
vi) the carbonTRACK seal has not been removed from the carbonTRACK product.
b) A person wishing to make a claim on this warranty must at their own expense, forward any allegedly faulty or defective carbonTRACK product and/or carbonTRACK approved parts to the Supplier.
If carbonTRACK decides to repair or replace a carbonTRACK product, Supplier agrees to pay the costs associated with the ordinary delivery of the replacement or repaired carbonTRACK product to the person making the claim. Should a carbonTRACK product or part of the carbonTRACK product be replaced or repaired during the period of this warranty, the warranty period for the replaced or repaired product shall be for the remainder of the original Warranty Period.
3. WARRANTY EXCLUSIONS
carbonTRACK shall not be liable for:
a) loss or damage caused by a part which is not a carbonTRACK supplied or approved part.
b) direct or consequential damage to other components arising from faulty installation.
c) normal wear and tear of the carbonTRACK product.
d) reimbursement for labor involved in the replacement of non-approved parts.
e) consequential loss including time, towage, storage, accommodation, goods, cargo or other similar expenses.
f) failures or defects of any carbonTRACK product resulting from:
i) misuse (whether intentional or otherwise), negligence, modifications, accident, lack of maintenance being carried out in accordance with the maintenance requirement or the carbonTRACK product, or, by Force Majeure.
ii) low/high voltage or other incorrect voltage supply.
iii) corrosion or water damage.
Please also refer to Section 20 (Complementary Hardware Clause) regarding third party accessory components warranty periods, terms, and conditions.
18. LIMITATIONS OF PRODUCT SOFTWARE
You acknowledge that the Services (including products and product software) are not certified for emergency response. YOU UNDERSTAND THAT THE SERVICES, PRODUCTS AND PRODUCT SOFTWARE ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM -- NAAK DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, any naak customer care and support contacts, if any, cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate emergency response services.
naak does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Services (including the products or product software) or any feature of them. Actual energy savings and monetary benefits vary with factors beyond naak’s control or knowledge. From time to time, naak may use the Services (including products and product software) to provide you with information that is unique to you and your energy usage and suggests an opportunity to save money on energy bills if you adopt suggestions or features of the Services (including products or product software). We do this solely 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 naak if your savings differ.
The Services, products, and product software provides you information ("Product Information") regarding the Services, products in your home and their connection with other products and services. All Product Information is provided "as is" and "as available". We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Services, product and product software is not a substitute for direct access of the information in the home.
19. RETURN POLICY
Merchandise purchased through naak, except as exempted herein, may be returned within thirty (30) days of the receipt of the product.
20. COMPLEMENTARY HARDWARE CLAUSE
All third-party accessory components sold by naak are bound by the original manufacturer's warranty period, terms, and conditions.
21. TECHNICAL SUPPORT
naak provides limited technical support at no cost for the lifetime of the carbonTRACK product.
Support services are anticipated to be available from 9am to 5pm Mountain Time, Monday through Friday. There are no service-level agreement regarding this support and no guarantees as to the availability, response time, or results of technical support. Support services are currently only available in English.
naak technical support is available to assist with the following issues: troubleshooting for the carbonTRACK device, including installation and configuration assistance for technicians/installers who are on-site; limited support for configuring devices; username/password resets; troubleshooting third party products sold by naak and supported by the Services; and evaluating warranty claims and issuing RMAs or other identification required by naak for a return.
Without in any way intending to revise or limit the foregoing language, naak technical support does not extend to the following: dispatching personnel for on-site technical support; programming or coding consultation; advanced network configuration for routers, modems, switches, wireless bridges or other network devices; or diagnosing issues with third party devices not sold/supported by the host.
22. NAAK DATA PLAN TERMS AND CONDITIONS
23. THIRD PARTY PRODUCTS AND SERVICES
The Services may enable you to connect to and make use of certain third-party products and services, content, and sites not within naak’s control. You agree that your use of such third-party products, services and sites is at your own risk, and that the use of such third-party products, services or sites is subject to applicable licenses, privacy policies, and all terms of service between you and the third party. We are in no way responsible for any third-party products, sites, applications, software or content made available on or through the Services. Provision of third party products, services, content, or sites does not imply naak endorsement thereof and naak makes no representations therefor. If you elect to connect to and make use of any third party products and services, content, and sites, you are required to conduct your own due diligence and we explicitly waive all liability regarding such third party’s acts, errors, omissions, or negligence.
24. CHANGES TO THE SERVICES; CANCELLATION OF THE SERVICES
We may change the Services or delete features at any time and for any reason. We may cancel or suspend your use of the Services at any time. Our cancellation or suspension may be without cause and/or without notice. Upon Services cancellation, your right to use the Services stops right away.
Upon termination or cancellation of the Services by you or us for any reason, naak may delete your data permanently from our servers. You are responsible for taking all necessary steps to back up your data and ensuring that you maintain your primary means of business or use of the data in or for your home. Once the Services are cancelled or suspended, any data you have stored on the Services may not be retrieved later. Note that the specific detailed measurements of electricity and associated analysis or data surrounding them remain the sole and exclusive property of naak.
26. ACCOUNT AND DATA STORAGE
Your profile and related data feeds from your energy provider(s) are specific to a given physical property address and a given utility meter or account. If you move to another property address, you will be required to set up a new profile and establish new data feeds (if available in your new area). You will be required to transfer the account to the new property owner who would have access for the duration of the term. naak will charge a $75 processing fee for these account transfer services. If you want naak at your new property, you will need to purchase a new system and re-establish an account.
27. CONSENT TO ENERGY DATA USE
You agree that naak and its affiliates, manufacturers, licensors, suppliers, and other third parties may collect, use, monitor or sell to third parties, energy use data and other statistics on your use of the Services, products, and product software and the information and data collected through same.
28. HOW WE MAY CHANGE THESE TERMS
We may change these Terms in our discretion by posting new applicable terms and conditions through the Services. If you do not agree to the changes, then you must stop using the Services. If you do not stop using the Services, then your use of the Services will continue under the Terms as modified.
29. INTERPRETING THESE TERMS
We may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign these Terms, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Services or any part of the Services.
31. THIRD PARTY BENEFICIARIES
You agree that naak’s third party partners, agents, employees, representatives, manufacturers, suppliers, and service providers are third party beneficiaries to these Terms and may rely upon its provisions, including but not limited to, the provisions concerning Warranties and Limitation of Liability.
32. CLAIMS MUST BE FILED WITHIN ONE YEAR
Any claim related to these Terms or the Services may not be brought by you unless brought within one (1) year. The one-year period begins on the date when the claim first could be filed. If it is not filed in time, then that claim is permanently barred. This applies to you and your successors.
In addition to any other available remedies, if you breach any of the terms or conditions listed within these Terms, naak may immediately terminate these Terms and pursue legal action and/or equitable injunctions in order to compensate naak for all injuries caused by such breach. You also further agree to forfeit any compensation earned by you in connection with your breach(es) of these Terms.
34. EQUITABLE REMEDIES
You hereby agree that if the terms of these Terms are not specifically enforced, naak will be irreparably damaged, and therefore you agree that naak shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any of these Terms, in addition to any other available remedies. You hereby expressly waive all rights to injunctive relief.
These Terms require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. Please read this carefully. It affects your rights.
Except for a claim by naak of infringement or misappropriation of its patent, copyright, trademark, or trade secret and/or naak’s ability to seek injunctive or other equitable relief, any and all disputes between you and naak arising under or related in any way to these Terms must be resolved through binding arbitration as described in this Section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Services. You agree that by entering into these Terms, you and naak are each waiving the right to trial by jury or to participate in a class action. You and naak agree that each may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Any arbitration will take place on an individual basis; class arbitrations and class actions are not permitted.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and naak must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Los Angeles, California. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Los Angeles, California. Any arbitration proceedings held hereunder shall be confidential.
36. ATTORNEY’S FEES AND COSTS
Should it become necessary for any party to these Terms to bring a claim in arbitration and/or litigation to enforce any provision herein, or for damages on account of any breach of these Terms, the prevailing party shall be entitled to recover from the other party or parties all costs and expenses incurred in the arbitration and/or litigation, which includes but is not limited to the recovery of reasonable attorney’s fees and court costs.
You agree to maintain the confidentiality of all non-public information obtained through the Services, including, but in no way limited to, the analysis of energy data, pricing of the Services, etc. This obligation shall survive termination of your use of the Services.
We may provide notices to you through posting them on our primary website or by e-mailing your primary account email. These Terms are in electronic form. We have promised to send you certain information in connection with the Services and have the right to send you certain additional information. There may be other information regarding the Services that the Law requires us to send you. We may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel your Services. We may provide required information to you:
39. CHOICE OF LAW/JURISDICTION AND VENUE
Unless otherwise set forth in a supplement for a particular service, these Terms will be governed by the Laws of the State of California and the United States of America, without regard to conflicts of law provisions as if this were a contract entered into and wholly performed within the State of California. Any disputes or differences between the parties arising out of these Terms which the parties are unable to resolve themselves shall be submitted to and resolved by arbitration as provided herein. Notwithstanding the arbitration obligations, naak shall be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction located in Los Angeles, California and you consent to personal jurisdiction of any court of competent jurisdiction in Los Angeles, California. Access to or use of the Services is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this Section.
40. COPYRIGHT AND TRADEMARK NOTICES
All contents of the Services are Copyright (c) 2018 naak Inc. and/or its suppliers, 4040 Civic Center Dr. Suite 200, San Rafael, CA. U.S.A. All rights reserved. Copyright and other intellectual property Laws and treaties protect any software or content provided as part of the Services. The names of actual companies and products mentioned herein may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved.
41. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INFRINGEMENT
naak respects the copyright of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide naak with a written communication including substantially the following information:
Please address your letter as follows:
Attention: CEO re DMCA
and send via email to email@example.com with Attention: CEO re DMCA in the subject line.
Feel free to email naak at firstname.lastname@example.org . However, any communication may be lost, intercepted or altered. naak is not liable for any damages related to communications to or from the Services. You agree with respect to any information provided by you to us through the Services or via e-mail that:
43. YOUR CONCERNS
If you have any concerns about these Terms or the Services or material which appears as a part of the Services or on our product or product software, please contact us at email@example.com.
Thank you for visiting http://www.naak.io.