PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is an Agreement (the "Agreement") between you ("you" or the "Subscriber") and Conserv Solutions Inc. ("we" or "Conserv"). In this Agreement, "System" means the products you have purchased from Conserv; "Services" mean the services you have selected to receive from Conserv, Account Management Services (as described in Section 20 below), the Application, defined as the software or subscription services that may be downloaded to your smartphone, tablet or other connected device (or any related or connected third-party mobile devices or product peripherals that control or connect to any of the foregoing) to access Services remotely and the customer support Services provided by Conserv in support of any of the foregoing; "Premises" means the premises at which the System is located. The term “you,” as used in this Agreement, means any person or entity who accesses or uses the Services and any person or entity who creates an account and accepts this Agreement and accesses or uses the Services, including any person granted access to the Services by you.
This is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the System or Services, you are agreeing to these terms.
(a) Conserv will provide you the Services subject to the terms of this Agreement.
(b) Only individuals age 18 and older are permitted to subscribe for the Services and register for an Account.
(e) If you contact Conserv’s customer service, you hereby consent to the means by which such contact was initiated. You similarly consent to Conserv contacting you through any of the means that Conserv makes available utilizing the contact information identified in your Account. This may include one-way or two-way video-enabled customer service communication methods, whether made available via your mobile device, through the Application or any other mobile or web interface now existing or later developed. Except as otherwise expressly agreed by you under a separate services agreement, Conserv will not charge you any additional fees to deliver, or for you to receive, such customer support Services; however, your wireless service provider may charge a fee for air-time or data usage associated therewith. Check with your wireless carrier if you have questions about your wireless plan.
- Free Services. means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
- Order or Order Form. The Conserv-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process or via in-app purchase. The Order may be referred to as a "Statement of Work" if you are purchasing only Consulting Services.
- Billing Period. The period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term as specified in the Order Form. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
Paid Users. Those types of Users (defined below) for which we charge you fees as set forth in our Product and Services Catalog.
Product and Services Catalog. Conserv's Product and Services Catalog available at [work in progress], as updated by us from time-to-time.
Subscription Fee. the amount you pay for the Subscription Service.
Subscription Service. All of our web-based collections applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://www.conserv.io or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
Subscription Term. the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
- Users. Your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
B. GENERAL COMMERCIAL TERMS
1. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your Conserv account. We might provide some or all elements of the Subscription Service through third party service providers.
2. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Conserv account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Conserv account.
3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
4. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you: (i) exceed your User or other applicable limits (see the ‘Limits’ section below), (ii) upgrade products or base packages, (iii) subscribe to additional features or products, or (iv) unless otherwise agreed to in the Order.
For our products that have applicable User limits, you will be charged fees associated with all Paid Users. For Conserv Cloud Professional, your number of Paid Users will not decrease, even if there is a subsequent reduction in the number of assigned Paid Users.
b. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Conserv account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
c. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
5. Subscription Term, Termination, Suspension
a. Term and Renewal. Your initial subscription period will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription period, or one year. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ section below.
The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the ‘Fees and Payments’ section above. If renewal pricing is not included in your Order, then our standard pricing available in our Product and Services Catalog on the date of renewal will apply. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the Conserv subscription during your Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, or (ii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
f. Suspension for Present Harm. If your website, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
g. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
h. Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause. You may request the deletion of your Conserv account after expiration or termination of your subscription by sending a request to email@example.com. You will continue to be subject to this Agreement for as long as you have access to a Conserv account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Conserv Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
C. SUBSCRIPTION TYPE TERMS
1. Subscription Types. We offer three main types of subscriptions: (1) Full-Service Subscriptions, and (2) Free Subscriptions. There are different terms that apply depending on the subscription you purchase, and we cover those differences in this section. Unless otherwise agreed to in an Order, the following subscription types apply to the products specified:
(1) Full-Service Subscriptions: Conserv Cloud Professional, Conserv Monitoring Professionsl, and paid Add-Ons to our Full-Service Products that are not otherwise Limited Service Subscriptions.
(2) Free Subscriptions: HubSpot CRM and all other products for which you do not pay us a Subscription Fee that we do not otherwise name in this ‘Subscription Types’ section.
2. Limits. The limits that apply to you will be specified in your Order Form, this Agreement or in our Product and Services Catalog, and for our Free Subscriptions, these limits may also be designated only from within the product itself. You must be 18 years of age (or 20 years of age, if you are subject to the laws of Japan) or older to use the Subscription Service.
For our Full-Service Subscriptions, if we make modifications to the limits set forth in the Product and Services Catalog that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the current product usage limits in our Product and Services Catalog will apply to your subscription, unless you and we otherwise agree.
For our Free Subscriptions, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a fee.
3. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
For our Full-Service Subscriptions, we will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Term.
4. Customer Support. If you pay us a Subscription Fee, phone, email and in-app support is included at no additional cost. Phone support for Professional or Enterprise edition subscriptions is available from 8am Monday to 5pm Friday CST (Central Standard Time), with reduced hours during holidays in the US. We accept email and in-app support questions 24 Hours per Day x 7 Days per Week. Email and in-app questions can be submitted through the help widget in the lower right hand corner of your account. Email and in-app responses are provided during phone support hours only. We attempt to respond to email and in-app support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we determine, in our reasonable discretion, that you are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of Conserv representatives. Issues resulting from your use of API's or your modifications to code in the Subscription Service may be outside the scope of support. We will only provide support for integrations which are listed in-app as being supported by Conserv.
6. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section above.
Unless otherwise specified in your Order, to prevent renewal of a Full-Service Subscription, you or we must give written notice of non-renewal and this written notice must be received no less than ten (10) days in advance of the end of the Subscription Term.
If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by turning auto-renew off by accessing the billing details information in your Conserv account.
To prevent continuation of the Subscription Term of a Free Subscription, you or we may close your account.
D. General Legal Terms
- INSURANCE. CONSERV'S SERVICE CHARGES ARE BASED SOLELY ON THE VALUE OF SERVICES PROVIDED AND ARE NOT INSURANCE PREMIUMS AND ARE NOT RELATED TO THE VALUE OF PROPERTY LOCATED ON OR NEAR THE PREMISES. YOU ACKNOWLEDGE AND AGREE THAT Conserv IS NOT AN INSURER AND SHALL NOT PROVIDE INSURANCE COVERAGE AGAINST ANY LOSSES, AS DEFINED BELOW. TO THE EXTENT YOU WISH TO HAVE ANY INSURANCE COVERAGE FOR LOSSES, AS DEFINED BELOW, IT IS YOUR RESPONSIBILITY TO PROCURE AND MAINTAIN SEPARATE INSURANCE POLICIES FROM AN INSURANCE COMPANY OR COMPANIES, SOLELY AT YOUR COST AND EXPENSE, COVERING ALL LOSS, DAMAGE OR EXPENSE (COLLECTIVELY, "LOSSES"), INCLUDING ALL PROPERTY DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY (I) THIS AGREEMENT, INCLUDING ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION ARISING HEREUNDER (II) THE SYSTEM, (III) THE SERVICES (INCLUDING Third-Party Products and Services), (IV) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ANY Conserv PARTY (AS DEFINED IN SECTION 5), (V) THE IMPROPER OPERATION OR NON-OPERATION OF THE SYSTEM, (VI) BREACH OF CONTRACT, EXPRESS OR IMPLIED, WHICH OCCURS BEFORE OR AFTER THE SIGNING OF THIS AGREEMENT (VII) BREACH OF WARRANTY, EXPRESS OR IMPLIED, (VIII) PRODUCT OR STRICT LIABILITY (IX) THE LOSS OR DAMAGE TO OR MALFUNCTION OF FACILITIES NECESSARY TO OPERATE THE SYSTEM, TRANSMIT ANY SIGNAL TO OR RECEIVE SIGNALS AT ANY MONITORING FACILITY, (X) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, (XI) A VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF ANY Conserv PARTY, (XII) A VIOLATION OF ANY LAW PROHIBITING THE INTERCEPTION OF ORAL COMMUNICATIONS BY ELECTRONIC MEANS, (XIII) THE ACTIONS OF ANY THIRD PARTY IN RESPONDING TO A SIGNAL FROM THE SYSTEM, OR (XIV) ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF YOUR PERSONAL INFORMATION (COLLECTIVELY, THE "COVERED CLAIMS"). RECOVERY FOR ANY LOSSES, AS DEFINED IN THIS SECTION 4, SHALL BE LIMITED TO THE INSURANCE YOU PURCHASE SEPARATELY FROM AN INSURANCE COMPANY, IF ANY.
- LIMITATIONS OF LIABILITY AND RELEASE. BY AGREEING TO THESE TERMS, YOU ARE RELEASING Conserv, ITS AFFILIATES, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, SUBCONTRACTORS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE "Conserv PARTIES"), TOGETHER WITH ANY PROVIDERS OF Third-Party Products and Services (AS HEREINAFTER DEFINED), ON YOUR BEHALF AND ON BEHALF OF ALL OTHERS WHO MAKE CLAIMS UNDER THIS AGREEMENT FROM ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED IN SECTION 4. UNDER NO CIRCUMSTANCES WILL Conserv BE RESPONSIBLE OR LIABLE TO YOU FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DEATH OR DAMAGES TO PROPERTY. NOTWITHSTANDING THE FOREGOING, EVEN IF ANY Conserv PARTY IS FOUND LIABLE FOR ANY LOSSES, AS DEFINED IN SECTION 4, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED IN SECTION 4, ANY SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. Conserv DISCLAIMS ALL LIABILITY OF ANY KIND OF Conserv’S LICENSORS AND SUPPLIERS. Conserv AND YOU ACKNOWLEDGE AND AGREE IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE BY Conserv TO PERFORM ANY OF ITS OBLIGATIONS. THIS AGREED-UPON AMOUNT IS NOT A PENALTY, AND IS THE SOLE REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- PUBLICITY. You grant us the right to add your name and company logo to our customer list and website.
- NO WARRANTIES. THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, AND Conserv AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
- Release of Insured Losses; Waiver of Subrogation. You release Conserv for all Losses covered by your insurance policies and for all insurance deductibles. You also waive and release any subrogation and other rights you or your insurance company may have against Conserv for money paid to you or on your behalf.
- INDEMNIFICATION. IF ANYONE OTHER THAN YOU (INCLUDING YOUR INSURANCE COMPANY) ASKS ANY Conserv PARTY TO PAY FOR ANY LOSSES, AS DEFINED IN SECTION 4, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM, AS DEFINED IN SECTION 4, INCLUDING THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ANY Conserv PARTY, YOU SHALL INDEMNIFY, DEFEND AND HOLD SUCH Conserv PARTY HARMLESS (WITHOUT ANY CONDITION THAT ANY OF THEM FIRST PAY), FOR ALL LOSSES, AS DEFINED IN SECTION 4, INCLUDING ATTORNEYS' FEES, ASSERTED AGAINST OR INCURRED BY SUCH Conserv PARTY. THE FOREGOING INDEMNIFICATION OBLIGATIONS MAY NOT BE ENFORCEABLE IN SOME STATES, SO SUCH OBLIGATIONS MAY NOT APPLY TO YOU.
- Communications Equipment and Services. The System is designed to transmit signals to a monitoring facility through certain communications equipment and services, including DSL, broadband, LoRaWAN, cellular, and/or wireless equipment and services (collectively, the "Communications Equipment and Services"). Regardless of the form of Communications Equipment and Services used, you understand that the Communications Equipment and Services may be interrupted, circumvented, unavailable (for a limited or extended time period) or otherwise compromised, including as a result of equipment designed or used by a third party. If the Communications Equipment and Services are inoperative or interrupted by any cause, there will be no indication of such at the monitoring facility and the monitoring facility will not receive a signal from your system. You must confirm that the Communications Equipment and Services are compatible with the System, including when you make any changes to the Communications Equipment and Services. Your access to, and availability of the Application is dependent on (i) your computer, mobile device, wiring, Wi-Fi network, Bluetooth connection, and other related equipment, (ii) your Internet service provider, and (iii) your mobile device carrier. You shall immediately repair (or caused to be repaired) any (i) problems with the Communications Equipment and Services; or (ii) problems with the System. Consult the Owner's Manual for your System for further important safety information for your System and the transmission of signals from your System. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER (THE “UNDERLYING CARRIER”) OR ITS AFFILIATES OR CONTRACTORS AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN Conserv AND THE UNDERLYING CARRIER. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU AND YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
- Additional Equipment or Services. You have selected the System based on your personal considerations (i.e., cost, the condition of the Premises, insurance requirements, etc.). Additional equipment or services, at additional cost, may provide increased detection. You agree that any additional equipment or services provided by Conserv shall be subject to this Agreement. We will honor any request provided that we have previously agreed in writing to do so. You understand that Conserv does not provide any installation services for the System. You shall provide and maintain adequate power for all equipment relating to the System.
- Default. If you default under this Agreement you shall pay Conserv for all Losses in enforcing its rights under this Agreement.
- Binding Agreement. This Agreement shall become binding on Conserv only after the commencement of any Services. This Agreement is binding on the parties' heirs, executors, administrators, successors and permitted assigns.
- Applicable Law. This Agreement shall be governed by and construed according to the laws of Alabama without reference to its conflicts of law rules. The interpretation of this Agreement shall not be construed against the drafter.
- Assignment. You may not assign this Agreement. Conserv may assign all or any portion of this Agreement.
- No Waiver of Breach. Waiver of your breach of this Agreement shall not be a waiver of any subsequent breach. Conserv's rights under this Agreement shall be cumulative, may be exercised concurrently or consecutively and shall include all remedies available even if not referred to in this Agreement.
- Account Management Services. "Account Management Services" means services relating to the remote management of the System through the Application or otherwise.
- Data; Data Storage. Your Account provides you with access to certain data stored by us. You agree that we may delete any data delivered to us when (i) any storage period that applies to your account expires, (ii) this Agreement is terminated or expires or (iii) you deliver a written request pursuant to Section 40 and such deletion is not prohibited by any applicable law, regulation, regulatory authority or other applicable judicial or governmental order. Notwithstanding anything contained herein to the contrary, Conserv is not responsible for any change to or loss of any data.
- App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party websites from which you download the Application, e.g. the App Store from Apple or the Android app market from Google (each, an “App Store”). You acknowledge that this Agreement is between you and Conserv 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 Application 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 this Agreement, the more restrictive or conflicting terms and conditions in this Agreement apply. Conserv will not charge you any additional fees for you to receive and download the Application; however, your wireless service provider may charge a fee for air-time or data usage associated therewith. Check with your wireless carrier if you have questions about your wireless plan.
- End User License and Intellectual Property. Subject to the terms and conditions of this Agreement, Conserv grants you a non-exclusive, non-transferable license to access and use the Services by (i) use the Application in connection with, and solely for the purpose of, controlling and monitoring the Services you are authorized to receive and/or control or monitor, and (ii) install and use the Application solely on your own devices and solely for the purposes set forth in this Agreement. There is a risk that unauthorized persons may gain access to the Application and data thereon and you agree to assume such risk. You will keep confidential all information available on the Application and all passwords relating to the Application or access thereto. This license will continue and be co-extensive with the term of this Agreement except for your (i) failure to keep confidential all information available on the Application and all passwords or access codes relating to the Application or access thereto, (ii) use of the license or the information in any manner that negatively affects us, (iii) use of the license or the information for any illegal purpose, (iv) breach of this Agreement or (v) violation of any applicable law. You will be solely responsible for information you deliver, delete or modify. Upon termination of this Agreement or termination or suspension of the license by us, we may immediately, and without notice, disable your access to the Application and cancel all passwords or other access codes. You will not (a) disclose or make available to third parties any portion of the technology associated with the Services or the Application without our prior written consent, (b) copy, decompile, dissemble, reverse engineer, manipulate, modify, or make derivative works of any technology incorporated in the Services or the Application. Conserv may from time to time develop patches, updates, upgrades or other modifications (“Updates”) to improve the performance of the Services or the Application. 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 or the Application. You acknowledge that you may be required to install Updates to use the Services and you agree to promptly install any Updates that Conserv provides. IF YOU FAIL TO INSTALL ANY UPDATES PROVIDED BY Conserv, YOUR ACCESS TO THE APPLICATION AND THE SERVICES MAY BE TERMINATED. Notwithstanding the foregoing, software embedded within any Conserv System may contain or be provided together with open source software. Each item of open source software is subject to its own applicable license terms, which can be found at Open Source Disclosures and/or in the software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders indicated therein. All rights with respect to such software not licensed to you hereunder are fully reserved by Conserv and/or its licensors.
- Suspension of Service. Conserv's obligations under this Agreement are waived automatically without notice and you release Conserv for all Losses following any default or breach of this Agreement by you or if the monitoring facility, or Communications Equipment and Services are destroyed, damaged, inoperable or malfunction for any reason whatsoever, for the duration of such interruption of service, and you shall be entitled to a credit of the unearned charges paid for the period of interruption on your request, which credit shall not exceed more than one month's service charge and shall be the limit of Conserv's liability. If this Agreement is terminated or the Services are suspended or terminated for any reason, you shall immediately disconnect the System from all Communications Equipment and Services (e.g., telephone line, radio transmitter, cellular transmitter, etc.). Upon termination of this Agreement or if the Services are suspended or terminated for any reason we may, in our sole discretion, without notice, and without any liability, remotely disable, disconnect or block the System and data from the System from communicating with the monitoring facility.
- Time Limitation on Actions. All claims, actions or proceedings against Conserv must be commenced in court within one (1) year after the cause of action has accrued, without judicial extension of time, or such claim, action or proceeding is barred. The time period in this Section must be complied with strictly.
- Integrated Agreement. This Agreement and any document made a part of this Agreement contains the entire agreement between the parties respecting the transactions described in such documents and supersedes all prior or current negotiations, commitments, contracts (express or implied) warranties (express or implied) statements and representations, whether written or oral, pertaining to such transactions, all of which shall be deemed merged into this Agreement. NEITHER PARTY HAS MADE ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, "INDUCEMENT") NOT EXPRESSED IN THIS AGREEMENT RESPECTING THE TRANSACTIONS DESCRIBED IN THIS AGREEMENT AND ANY DOCUMENT MADE A PART OF THIS AGREEMENT AND, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY INDUCEMENT WHICH IS NOT SET FORTH IN THIS AGREEMENT.
- Valid Agreement. Should any provision of this Agreement (or portion of this Agreement), or its application to any circumstances, be held illegal, invalid or unenforceable to any extent, the validity and enforceability of the remainder of the provision and this Agreement, or of such provisions as applied to any other circumstances, shall not be affected thereby, and shall remain in full force and effect as valid, binding and continuing.
- Modifications. Additions, amendments, modifications or deletions to these terms shall not become part of the Agreement unless agreed to in writing by the parties; provided that Conserv may add, amend, modify or delete the terms of this Agreement by providing prior written notice of such addition, amendment, modification or deletion on its website at Terms of Service, which amended terms shall be binding upon the parties.
- Right to Subcontract. Monitoring of the System is provided by a third party independent contractor. Conserv may, in its sole discretion, subcontract for the provision of any of the Services under this Agreement. The provisions of this Agreement inure to the benefit of and are applicable to (i) any subcontractors engaged to provide any of the Services to you, including any monitoring facility; and (ii) each of the Conserv Parties (and any providers of Third-Party Products and Services, if any and solely as applicable), and bind you to all such persons or entities listed in the foregoing subsection (i) or (ii) with the same force and effect as they bind you to Conserv. Any subcontractor we engage is an independent contractor and not our partner or joint venturer. You authorize us to act as your agent for purposes of working with, or providing any directions to, any subcontractors with respect to the provision of the Services. You authorize us to share your personal information with our subcontractors or Third Parties for the purpose of providing Services under this Agreement.
- Section Headings; Interpretation. The section titles used herein are for convenience of the parties only and shall not be considered in construing the provisions of this Agreement. When used in this Agreement, (i) the word "including" shall mean "including, but not limited to;" and (ii) the term "sole discretion" shall mean "sole and absolute discretion without any liability."
- Right to Notice and Cure. If Conserv breaches this Agreement, you shall provide Conserv written notice specifically identifying the nature of the breach and the provisions of this Agreement affected as a result of such breach. Conserv may cure the breach within five (5) business days following Conserv's receipt of the written notice or, if the breach cannot be reasonably cured within such period, may promptly commence to cure and diligently proceed until cured. If Conserv cures any such breach, this Agreement shall continue unabated and Conserv shall not be liable to you for any Losses arising out of or in connection with, due to or caused in whole or in part by any such breach.
- Dispute Resolution and Arbitration. PLEASE READ THIS SECTION CAREFULLY. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. Certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Conserv agree that Conserv intends that this Section 39 satisfies the “writing” requirement of the Federal Arbitration Act.
- In the event of any dispute or disagreement between the parties, or claim or question by a party, arising from or relating to this Agreement or the breach hereof (collectively, a “Dispute”), the parties hereto shall use their best efforts to settle the Dispute. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution within a period of 60 days then, upon notice by either party to the other, such Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Consumer Arbitration Rules. Once the Dispute is submitted to the AAA for arbitration and each party pays the appropriate filing fees, the parties agree to equally share all costs of AAA arbitration, including Arbitrator fees and expenses. The parties will remain individually responsible for their own attorney costs or other non-AAA required costs. If an in-person arbitration hearing is required, then it will be conducted at the American Arbitration Association’s office in Boston, Massachusetts.
- The arbitration will be heard and determined by a single neutral arbitrator selected by the AAA who is a retired judge or a lawyer with not less than 15 years of experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Consumer Arbitration Rules. The arbitrator will apply applicable law and the provisions of this Agreement and will determine any Dispute according to the applicable law and facts based upon the record and no other basis. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. You can obtain the AAA procedures, rules, and fee information as follows: AAA: 800.778.7879 http://www.adr.org/ In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The parties agree that the arbitration shall be confidential. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 40) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
- NOTWITHSTANDING THE FOREGOING, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS ACTION BASIS OR ON ANY BASIS INVOLVING ANY DISPUTE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC, OTHER PERSONS OR ENTITIES DOING BUSINESS WITH Conserv, OR OTHER PERSONS OR ENTITIES SIMILARLY SITUATED. FURTHERMORE, ANY DISPUTE BROUGHT BY OR AGAINST Conserv MAY NOT BE JOINED OR CONSOLIDATED IN THE ARBITRATION WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER Conserv SUBSCRIBER, UNLESS OTHERWISE AGREED BY THE PARTIES. FURTHER, THE PARTIES ACKNOWLEDGE THAT THEY WAIVE ANY RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY DISPUTE SUBJECT TO ARBITRATION. SUBSCRIBER SHALL HAVE THE RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE BY PROVIDING WRITTEN NOTICE OF ITS INTENTION TO DO SO BY EMAILING TOS@Conserv.COM WITHIN 60 DAYS OF THIS AGREEMENT BECOMING BINDING UPON SUBSCRIBER FOR THE FIRST TIME. OPTING OUT OF THIS AGREEMENT TO ARBITRATE HAS NO EFFECT ON ANY PREVIOUS, OTHER, OR FUTURE ARBITRATION AGREEMENT(S) THAT SUBSCRIBER MAY HAVE WITH Conserv. IF THIS AGREEMENT TO ARBITRATE BECOMES BINDING, SUBSCRIBER CAN NOT CHANGE, MODIFY OR REVOKE IT (INCLUDING BY ATTEMPTING TO OPT OUT IN CONNECTION WITH ANY CONFIRMATION OF THE THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME) WITHOUT AN AGREEMENT IN WRITING SIGNED BY Conserv. IN THE EVENT THAT THE SUBSCRIBER OPTS OUT OF THIS AGREEMENT TO ARBITRATE IN ACCORDANCE WITH THIS SECTION 39: EACH PARTY HEREBY IRREVOCABLY AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ("SUIT") ARISING OUT OF OR IN CONNECTION WITH OR DUE TO ANY CLAIM OR DISPUTE THAT HAS ARISEN OR MAY ARISE BETWEEN THE PARTIES MUST BE RESOLVED EXCLUSIVELY BY A STATE OR FEDERAL COURT LOCATED IN BOSTON, MASSACHUSETTS; EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE OF EACH SUCH COURT IN ANY SUCH SUIT AND WAIVES ANY OBJECTION THAT IT MAY HAVE TO JURISDICTION OR VENUE OF ANY SUCH SUIT; EACH PARTY CONSENTS TO SERVICE OF PROCESS IN ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT; AND EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY SUCH SUIT.
- Notices. Unless otherwise expressly provided herein, (i) all notices required to be given to Conserv shall be deemed to have been duly given if in writing and mailed by regular mail, postage prepaid, or overnight delivery, by a reputable, national overnight delivery service to Conserv's then current principal place of business and (ii) all notices required to be given to Subscriber shall be deemed to have been duly given if in writing and sent to the e-mail address on file with Conserv for your Account. Subscriber is responsible to provide Conserv with any changes to Subscriber's e-mail address pursuant to the foregoing sentence.
- Severability. If any provision of this Agreement is found to be invalid, the remaining provisions are still effective.