Date of Last Revision: Jan 18, 2018
THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Mistbox, Inc. (“Mistbox, “we,” “us,” “our”) provides its services (described below) to you through its website located at www.mistbox.com (the “Site”) and through the Mistbox Mobile App (“App”) and related services (collectively, such services, including any new features and applications, the App and the Site, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
Access and Use of the Service
Services Description: The Service is designed to provide an automated Air Conditioning efficiency boosting and monitoring service.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Mistbox of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Mistbox will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: Mistbox reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Mistbox will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Mistbox may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Mistbox servers on your behalf. You agree that Mistbox has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Mistbox reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Mistbox reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Mistbox and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Mistbox account information to ensure that your messages are not sent to the person that acquires your old number.
Subscription Terms and Fees
Mistbox Subscriptions: Mistbox Subscriptions include a Mistbox Control Unit (“Control Unit”) , Mistbox Wind Turbine (“Turbine”), Mistbox Spray Bars (“Bars”), Mistbox Accessories (“Accessories” and together with the Control Unit, Turbine and Bars, the “Hardware”), and access to the App. For more details, please see the home page of our Site. Your subscription covers the cost of the Hardware, warranty coverage (including replacement of the Control Unit for normal wear and tear, as determined in our sole discretion), the subscription to cell service, as needed water treatment cartridge replacements (“Cartridges”), access to the App, and lifetime warranty. The Subscription is payable in accordance with the Fees section below. For more information on how to cancel your Subscription, please see the Termination section, below.
Pre-Orders: Subscriptions may be made available for pre-order via the Services. If you place a pre-order for a Subscription, Mistbox will charge your credit card now for the applicable Subscription fee specified on the Site, plus any applicable charges for taxes, and will ship you the Hardware and the Service when they become available.
For more information on how to cancel your Preorder, please see the Termination section, below.
Fees: Upon selecting a Subscription plan via the Services, you will be required to select a payment plan and provide Mistbox information regarding your credit card or other payment instrument. You represent and warrant to Mistbox that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Mistbox the amount that is specified in the Subscription plan in accordance with the terms of such plan and this Terms of Service. You hereby authorize Mistbox to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account (in accordance with the terms of Termination herein), and you further agree to pay any charges so incurred. If you dispute any charges you must provide written notice to Mistbox via email to firstname.lastname@example.org within sixty (60) days after the date that Mistbox charges you. We reserve the right to change Mistbox’s prices. If Mistbox does change prices, Mistbox will provide notice of the change on the Site or in an email to you, at Mistbox’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on Mistbox’s net income.
Resale; Lease; Title Transfer; and Returns: The Services and any related products, including the any and all Hardware, the App, and any additional services provided to you by Mistbox (collectively, the “Products”), are intended for end users only, and are not authorized for resale. If you have purchased a Mistbox Subscription, the Hardware is leased to you for use solely in connection with the Services, and upon cancellation of your Subscription and request from us, you agree to return the Hardware to us, at your cost. You hereby acknowledge and agree that failure to return the Hardware within thirty (30) days of the effective date of cancellation will result in a charge of late penalties and/or the cost of the Hardware (as set forth below in the Non-Return Fees section) and you hereby authorize Mistbox to charge your payment instrument, accordingly.
As long as you are under a Mistbox Subscription plan, Mistbox (at its sole discretion) will honor a lifetime warranty that covers normal wear and tear and manufacturer defects on the Hardware. Please contact email@example.com for warranty replacements.
Shipping and Delivery: Mistbox Subscription plans include shipping costs for the Hardware and replacement Cartridges, however, any returns do not include shipping costs. The estimated arrival or delivery date is not a guaranteed delivery date for your order.
Product Restrictions: Although our Site is accessible worldwide, our Products are designed and tested solely for use in the United States. If you choose to use the Products outside of The United States you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country.
Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“Content”) that you upload, post, publish or display (“Upload”), email or otherwise use via the Service. Mistbox reserves the right to investigate and take appropriate legal action against anyone who, in Mistbox ’s sole discretion, violates this provision, including without limitation, removing the offending Content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. The following are examples of the kind of Content and/or use that is illegal or prohibited by Mistbox:
- email or otherwise upload any Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Mistbox , is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Mistbox or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services.
You represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Mistbox and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Mistbox are non-confidential and Mistbox will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Mistbox may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Mistbox, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Third Party Material: Under no circumstances will Mistbox be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Mistbox does not pre-screen content, but that Mistbox and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Mistbox and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Mistbox, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Mistbox has no control over such sites and resources and Mistbox is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Mistbox will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Mistbox is not liable for any loss or claim that you may have against any such third party.
Social Networking Services
In addition, Mistbox is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Mistbox is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Mistbox enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Apple-Enabled Software Applications
Mistbox offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- Mistbox and you acknowledge that these Terms of Service are concluded between Mistbox and you only, and not with Apple, and that as between Mistbox and Apple, Mistbox, not Apple, is solely responsible for the Apple-Enabled Software and the content.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Mistbox’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Mistbox and you acknowledge that Mistbox, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Mistbox and Apple, Mistbox, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Mistbox as follows: firstname.lastname@example.org 10661 Haddington Dr #170, Houston, TX 77043.
Mistbox and you acknowledge and agree that Mistbox, and Mistbox’s subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Mistbox, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Mistbox from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g. by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of Mistbox, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Mistbox.
The Mistbox name and logos are trademarks and service marks of Mistbox (collectively the “Mistbox Trademarks”). Other company’s products and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Mistbox. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Mistbox Trademarks displayed on the Service, without our prior written consent in each instance. All goodwill generated from the use of Mistbox Trademarks will inure to our exclusive benefit.
Indemnity and Release
In consideration of being permitted to access and use the Services You agree to release, indemnify and hold Mistbox and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR(IV) THE QUALITY OR QUANTITY OF ANY PRODUCTS, SERVICES (INCLUDING, WITHOUT LIMITATION, ANY SHIPPING OR HANDLING OF PRODUCTS), INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL BE WITHOUT ERROR OR MEET YOUR EXPECTATIONS.
Our Products may include product warnings and instructions on the packaging, labels and documentation. AS A CONDITION TO RECEIVING SERVICES, YOU AGREE TO STRICTLY COMPLY WITH ALL PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS AND DOCUMENTATION OF PRODUCTS, AND ANY UPDATES THAT WE PROVIDE TO YOU VIA THE SERVICES.
In addition, you agree to only use the Products in a manner that complies with all applicable laws and regulation.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE OR PRODUCT PURCHASED THROUGH THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED (INCLUDING, WITHOUT LIMITATION ANY CHEMICALS OR OTHER PRODUCT PURCHASED THROUGH THE SERVICES) OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Furthermore in no event will Mistbox or its Representative be liable to you in the event: (I) you sustain or incur any damages, expenses, costs, loss of savings, loss of property, loss or interruption of power supply, arising from any act or omission in performing your obligations under this Agreement, (II) for any loss or damages in connection with the third party equipment during performance or non-performance of your Mistbox Services, (III) if you modify the Mistbox device for any purpose not identiﬁed or contrary to the terms and conditions of this Agreement, (IV) for the failure of your air conditioning, cooling units or any other machinery or equipment that the Mistbox Hardware is installed on, (V) any failure or inability to save or reduce the cooling energy costs due to malfunction or defect in the air conditioner, cooling unit, machinery, equipment, or as result of environmental factors, or happening of any event or any other reason whatsoever not directly connected or associated with the Mistbox Device, (VI) for any damage sustained to the Mistbox Device or any delay or failure to perform Services due to Force Majeure. For the purpose of this clause Force Majeure shall mean unforeseen circumstances beyond the reasonable control of Mistbox (or its Representatives), including but not limited to any act of God, enactment or change of any law or regulation, act of government or any authorities, hostilities between nations, war, riot, civil commotions, civil war, insurrection, blockades, import or export regulations or embargoes, rainstorms, national emergency, earthquake, fires, explosion, flooding, hurricane or other exceptional weather conditions or natural disaster, acts of terrorism, accidents, sabotages, strikes, shortages in material or supply, infectious diseases, epidemics, as well as travel restrictions or travel warnings due to any such events.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
A. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Company, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Company are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
B. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
C. Pre-Arbitration Dispute Resolution
Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Company should be sent to Mistbox, Inc 10661 Haddington Dr #170, Houston, TX 77043 (“Notice Address”).
The Notice must
(i) describe the nature and basis of the claim or dispute and
(ii) set forth the specific relief sought. If Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Company is entitled.
D. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Company and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
E. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Company will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Company will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Company will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
I. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Company agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Company written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
To keep costs down for you, we provide Mistbox Hardware at reduced or no cost. In exchange, we ask that you remain a customer for an initial term of either 12, 24 or 36 months. At the end of your initial term commitment, your service will auto renew and continue to be billed on an annual basis at a rate of $99 per year.
You can cancel your service at any time by sending an email to firstname.lastname@example.org. There is no cancellation fee for cancelling your service. However, refunds are not offered for any remaining subscription period. Upon cancellation of Mistbox Service, you are required to return the Equipment used in connection with your Mistbox Service, as described in Equipment Return Section below.
If you have placed a Pre-Order with us, you may cancel your Pre-Order Subscription at any time prior to shipment by contacting email@example.com. For more information, please contact us at firstname.lastname@example.org.
You agree that Mistbox, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Mistbox believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Mistbox may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Mistbox may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Mistbox will not be liable to you or any third party for any termination of your access to the Service.
Equipment Return, Non-Return Fees
If you cease to be our customer (whether voluntarily or involuntarily), you must contact Mistbox within 7 days at email@example.com for instructions on how to return your Mistbox Equipment at your own cost. Mistbox Service Equipment must be returned in good working order, normal wear and tear excepted. If we haven’t received your Mistbox Equipment within 21 days of termination of your Subscription, or if the Equipment is returned in damaged condition, in each instance we will charge you $249 for each Mistbox Control Unit, $49 for each Mistbox Wind Turbine, and $15 for each Mistbox Spraybar. So please attend to your Equipment return promptly. We reserve the right to charge these fees to the credit or debit card you have on file with us. Visit Mistbox.com/legal or contact Mistbox Support at firstname.lastname@example.org for details.
These Terms of Service constitute the entire agreement between you and Mistbox and govern your use of the Service, superseding any prior agreements between you and Mistbox with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of Texas without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Mistbox agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Harris County, Texas. The failure of Mistbox to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Mistbox, but Mistbox may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Mistbox, Inc. 10661 Haddington Dr #170, Houston, TX 77043.
Questions? Concerns? Suggestions?
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.