Certain features of the Radiator Labs Control System or Services may be subject to additional guidelines, terms, or rules, which will be posted on the Radiator Labs Control System or Services in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms. In the event of a conflict between the additional terms and any provision in these Terms, the additional terms will prevail, but only with respect to the Service to which the additional terms apply.
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our App or Services. We will notify you of any changes to our Terms by posting the new Terms here: https://www.radiatorlabs.com/terms/. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our App or Services. These changes will be effective immediately for new users of our Radiator Labs Control System or Services. Continued use of our Radiator Labs Control System or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. PLEASE REGULARLY CHECK https://www.radiatorlabs.com/terms/ TO VIEW THE THEN-CURRENT TERMS.
- Account Creation. In order to use certain features of the Radiator Labs Control System or Services, you must register for an account (“Account”) by following the instructions in the App. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the App or uninstalling the App, however, such uninstall could result in a loss of some or all of the functionality of the Radiator Labs Control System. You agree not to create an Account or use the Radiator Labs Control System or Services if you have been previously removed by us or banned from any of the Services. You represent that you are (a) at least eighteen (18) years old; (b) of legal age to form a binding contract; and (c) not a person barred from using the Radiator Labs Control System or Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Radiator Labs reserves the right in its sole discretion to suspend or terminate your Account and/or refuse any and all current or future use of the Radiator Labs Control System or Services (or any portion thereof) at any time for any reason. You agree that neither Radiator Labs nor its suppliers or licensors will be liable to you or to any third party for any suspension or termination of your Account or any refusal of any use of the Radiator Labs Control System or Services (or any portion thereof).
- Account Responsibilities. You are responsible for all activities that occur under your Account. You agree to immediately notify Radiator Labs of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Neither Radiator Labs nor its suppliers or licensors will be liable for any loss or damage arising from your failure to comply with the above requirements.
- Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the App, including but not limited to, a mobile device that is suitable to connect with and use the App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the App.
- Access to the App and Services
- Application License. Subject to these Terms, we grant you a non-transferable, non-exclusive, revocable, limited license to use and access, solely for your own personal, noncommercial use (a) the App on any compatible device that you own or control, and (b) the other aspects of Radiator Labs Control System and Services. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store or Google Play Store (each an “App Store” and references to the App Store include the corporate entity and its subsidiaries making the App Store available to you), you agree to comply with all applicable third party terms of the App Store (the “Usage Rules”) when using the App. To the extent the terms of these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies. With respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you will only use the App Store Sourced App on an Apple-branded product that runs the iOS (Apple’s proprietary operating system).
- App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the App Store. You acknowledge that the Terms are between you and Radiator Labs, and not with the App Store. Radiator Labs, not the App Store, is solely responsible for App and Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with App or Services. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the App or Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
- Open-Source Software. Certain software code incorporated into or distributed with the App may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in these Terms, the Open Source Software is not licensed under Section 2.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
- Accessing and Downloading the App from iTunes. The following applies to any App Store Source App:
- You acknowledge and agree that (i) the Terms are concluded between you and Radiator Labs only, and not Apple, and (ii) Radiator Labs, not Apple, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the App Store Terms of Service.
- You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced App.
- In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App. As between Radiator Labs and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Radiator Labs.
- You and Radiator Labs acknowledge that, as between Radiator Labs and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- You and Radiator Labs acknowledge that, in the event of any third-party claim that the App Store Sourced App or your possession and use of that App Store Sourced App infringes that third party’s intellectual property rights, as between Radiator Labs and Apple, Radiator Labs, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
- You and Radiator Labs acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced App, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced App against you as a third-party beneficiary thereof.
- Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced App.
- Usage of the Radiator Labs Control System and Services
- Temperature. By using the Radiator Labs Control System, you may have the ability to adjust the temperature of your unit via the App, depending on the our agreement with the entity who contracts with us to provide the Radiator Labs Control System (i.e., the building owner or landlord). If such functionality is available, you acknowledge and agree that neither Radiator Labs nor its licensors or suppliers will be liable to you for any temperature setting or any increased costs associated therewith. In addition, you acknowledge and agree that Radiator Labs does not guarantee that the use of the termperature adjustment functionality will result in the room reaching the adjusted temperature.
- Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Radiator Labs Control System or Services, whether in whole or in part, or any content displayed on the Radiator Labs Control System or Services; (b) you shall not frame or utilize framing techniques to enclose any trademark or logo of Radiator Labs or other portion of the Radiator Labs Control System or Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Radiator Labs’ name or trademarks; (d) you shall not m modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Radiator Labs Control System or Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not access the Radiator Labs Control System or Services in order to build a similar or competitive product or service; (f) except as expressly stated herein, no part of the Radiator Labs Control System or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Radiator Labs Control System or Services (or on any content displayed on the Radiator Labs Control System or Services). Unless otherwise indicated, any future release, update, or other addition to functionality of the Radiator Labs Control System or Services shall be subject to these Terms. Radiator Labs makes no representation that the Radiator Labs Control System or Services are appropriate for use in locations other than the United States.
- Modification. Radiator Labs reserves the right, at any time, to modify, suspend, or discontinue the Radiator Labs Control System or Services (in whole or in part) with or without notice to you. You agree that neither Radiator Labs nor its licensors or suppliers will be liable to you or to any third party for any modification, suspension, or discontinuation of the Radiator Labs Control System or Services or any part thereof.
- No Support or Maintenance; Updates. You acknowledge and agree that Radiator Labs will have no obligation to provide you with any support or maintenance in connection with the Radiator Labs Control System or Services. You agree that Radiator Labs is not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the Radiator Labs Control System or Services (each an “Update”). However, in the event Radiator Labs decides to offer an Update, you agree that Radiator Labs may amend these Terms in connection with such Update without specific notice to you and that your use of the Radiator Labs Control System or Services following such Update is conditioned upon your acceptance of any revised Terms. By using Radiator Labs Control System App or Services following an Update, you are representing that you have reviewed the then-current version of these Terms and agree to be bound by such version. All Updates will be governed by the version of these Terms published by Radiator Labs as of the date you use the Radiator Labs Control System or Services following such Update.
- Third-Party Materials. As a part of the Radiator Labs Control System and Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Radiator Labs to monitor such materials and that you access these materials at your own risk.
- Ownership. You acknowledge and agree that (a) as between you and Radiator Labs, the Radiator Labs Control System and Services are and will remain the sole property of Radiator Labs and are subject to protection under U.S. and foreign copyright laws and (b) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Radiator Labs Control System and Services and content made available through the Radiator Labs Control System and Services are owned by Radiator Labs and its suppliers and licensors. Radiator Labs’ name, logo, and the product names associated with the Radiator Labs Control System or Services belong to Radiator Labs or its suppliers or licensors, and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the Radiator Labs Control System or Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Radiator Labs and its suppliers and licensors and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
- Feedback. You agree that submission of any ideas, suggestions, and/or proposals to us (“Feedback”) is at your own risk and that Radiator Labs has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Radiator Labs a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights. Radiator Labs will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to Radiator Labs any information or ideas that you consider to be confidential or proprietary.
- Indemnification. You agree to indemnify and hold Radiator Labs and its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers and licensors (collectively, the “Radiator Labs Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your: (a) use of, or inability to use, the Radiator Labs Control System or Services; (b) violation of these Terms; (c) violation of applicable laws or regulations; or (d) violation of any rights of another party. A Radiator Labs Party reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify such Radiator Labs Party, and you agree to cooperate with the defense of these claims. You agree not to settle any matter without the prior written consent of the applicable Radiator Labs Party. Radiator Labs will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Third-Party Links & Ads; Release
- Third-Party Links & Ads. The App or Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Radiator Labs, and neither Radiator Labs nor its suppliers or licensors will be responsible for any Third-Party Links & Ads. Radiator Labs provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
- Release. You hereby release and forever discharge the Radiator Labs Parties from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Radiator Labs Control System or Services (including any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE RADIATOR LABS CONTROL SYSTEM AND SERVICES IS AT YOUR SOLE RISK AND THAT THE RADIATOR LABS CONTROL SYSTEM AND SERVICES AND ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY THE RADIATOR LABS CONTROL SYSTEM OR SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THE RADIATOR LABS PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE RADIATOR LABS CONTROL SYSTEM AND SERVICES AND ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PROVIDED BY THE RADIATOR LABS CONTROL SYSTEM OR SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. THE RADIATOR LABS PARTIES MAKE NO WARRANTY THAT THE RADIATOR LABS CONTROL SYSTEM OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE RADIATOR LABS CONTROL SYSTEM AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE RADIATOR LABS CONTROL SYSTEM AND SERVICES WILL BE CORRECTED. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE RADIATOR LABS CONTROL SYSTEM OR SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
RADIATOR LABS DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE RADIATOR LABS CONTROL SYSTEM WILL OR PROVIDE ANY SPECIFIC LEVEL OF ENERGY EFFICIENCY OR COST SAVINGS. ANY ENERGY SAVINGS PROVIDED BY RADIATOR LABS ARE ESTIMATES ONLY AND DO NOT REPRESENT ANY WARRANY OR GUARANTEE THAT SUCH SAVINGS WILL BE ACHIEVED.
THE RADIATOR LABS PARTIES EXPRESSLY DISCLAIM ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR RADIATOR, UNIT, AND ALL OTHER ITEMS AND PETS IN YOUR UNIT, RESULTING FROM YOUR USE OF RADIATOR LABS CONTROL SYSTEM.
you ACKNOWLEDGE AND AGREE THAT A REDUCTION OF OVERHEATING IN PREMISES RESULTING FROM THE RADIATOR LABS CONTROL SYSTEM MAY EXASCERBATE UNDERLYING ISSUES THAT COULD IMPACT TENANT COMFORT, INCLUDING, BUT NOT LIMITED TO, AIR LEAKAGE, LACK OF INSULATION, AND INSUFFICIENCY OF SINGLE PANE WINDOWS. you ACKNOWLEDGE AND AGREE THAT RADIATOR LABS IS NOT RESPONSIBLE FOR SUCH ISSUES. YOU ACKNOWLEDGE THAT A FAILURE OF THE PREMISES TO OPERATE IN ACCORDANCE WITH APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, STATUTORY TEMPERATURE REQUIREMENTS, PRIOR TO THE INSTALLATION OF THE RADIATOR LABS CONTROL SYSTEM MAY REDUCE ANY ENERGY SAVINGS resulting FROM THE USE OF THE RADIATOR LABS CONTROL SYSTEM. YOU ACKNOWLEDGE that in order to facilitate the installation of the Cozy system, furniture and other obstacles in YOUR UNIT might need to be moved. Radiator Labs will use reasonable efforts to return such items to their original location following installation.
- Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY OF THE RADIATOR LABS PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE RADIATOR LABS CONTROL SYSTEM OR SERVICES , HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE RADIATOR LABS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE RADIATOR LABS CONTROL SYSTEM AND SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE RADIATOR LABS PARTIES’ LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE CREDITS EARNED BY YOU IN THE PRECEDING TWELVE (12) MONTHS AND (B) FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT NEITHER OUR SUPPLIERS NOR OUR LICENSORS WILL HAVE ANY LIABILITY OF ANY KIND (WHETHER DIRECT OR INDIRECT) ARISING FROM OR RELATING TO THESE TERMS.
IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE RADIATOR LABS CONTROL SYSTEM AND SERVICES OR THESE TERMS YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE RADIATOR LABS CONTROL SYSTEM.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RADIATOR LABS AND YOU.
- Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Radiator Labs Control System or Services. You may terminate your Account at any time, for any reason, by following the instructions on the App or uninstalling the App. We may suspend or terminate your rights to use the Radiator Labs Control System and/or Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Radiator Labs Control System or Services in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Radiator Labs Control System and Services will terminate immediately. You understand that any termination of your Account may involve deletion of any data associated with your Account from our live databases. Neither Radiator Labs nor its suppliers or licensors will have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of such data. Even after your rights under these Terms are terminated, all provisions of these Terms which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
- Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Radiator Labs and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Radiator Labs that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Radiator Labs, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, assigns, suppliers and licensors as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Radiator Labs should be sent to: 15 Metrotech Center NYC ACRE 19th Floor Brooklyn NY 11201. After the Notice is received, you and Radiator Labs may attempt to resolve the claim or dispute informally. If you and Radiator Labs do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S. the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Radiator Labs made to you prior to the initiation of arbitration, Radiator Labs will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Radiator Labs pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Radiator Labs, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Radiator Labs.
- Waiver of July Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Radiator Labs in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND RADIATOR LABS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival. This Arbitration Agreement will survive the termination of your relationship with Radiator Labs.
- Small Claims Court. Notwithstanding the foregoing, either you or Radiator Labs may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota, for such purpose.
- Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- Export. The Radiator Labs Control System and Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Radiator Labs, or any products utilizing such data, in violation of the United States export laws or regulations.
- Disclosures. Radiator Labs is located at the address set forth below. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Electronic Communications. The communications between you and Radiator Labs use electronic means, whether you use the Radiator Labs Control System or Services or send us emails, or whether Radiator Labs posts notices on the App or Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Radiator Labs in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Radiator Labs provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- Miscellaneous. These Terms constitute the entire agreement between you and us regarding the use of the Radiator Labs Control System and Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Radiator Labs is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Radiator Labs’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Radiator Labs may freely assign these Terms. The terms and conditions set forth in these Terms shall inure to the benefit of and be binding upon permitted assignees.
- Force Majeure. Neither Radiator Labs not its suppliers or licensors will be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Marks. All trademarks, logos and service marks (“Marks”) displayed on the Radiator Labs Control System or Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
- Contact Information:
Radiator Labs, Inc.
Brooklyn Navy Yard, 63 Flushing Ave
Building 292 Suite 409
Brooklyn, NY 11205