Terms & Conditions
Last updated: June 11, 2021
Thank you for using Ome services. These terms of service (the “Terms”) govern your access to and use of the Ome products, software, and services via our websites and mobile application. This is a legal agreement between you and Ome, so please read the Terms carefully before using the Services.
Ome, Inc. and its subsidiaries and affiliates (“Ome” or “us” or “we” or “our”), provides services via our website located at www.omekitchen.com or the Ome mobile applications (the “Application(s)”). Both the website and the Application shall be hereinafter referred to as the “Site“. The Site (including all related software that we provide), together with all services that we may provide via the Site shall be known as the “Services.” Data from hardware containing our technology that you buy from us or our partners (“Device(s)”) will be uploaded to the Services. The hardware you purchase from us is not usable without your accessing the Services. Once enabled, the Services include online storage of your personal data, and the ability to manage and share your data.
Introduction and Overview
By clicking “I Agree” on the Site, setting up a user account, or by accessing and using the Services (including the Site and Application), you are accepting and agreeing to these Terms on behalf of yourself or the entity you represent in connection with the access. You represent and warrant that you have the right, authority, and capacity to accept and agree to these Terms on behalf of yourself or the entity you represent. You represent that you are of sufficient legal age in your jurisdiction or residence to use or access the services and to enter into this agreement. If you do not comply with the above statements, or disagree with any of the provisions of these Terms, you should disconnect your Devices and cease accessing or using the Services.
These Terms govern your use of the Services. Your purchase of any Device is governed by the limited warranty provided with that Device (“Limited Warranty”) and by the applicable terms and conditions of sale. The software embedded in the Device (and any updates thereto) (“Licensed Software”) is licensed and governed by the Ome End User License Agreement. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. By using the Services, you are agreeing to any applicable Limited Warranty and End User License Agreement.
To access the Services, you must register for a user account on the Service. The information you provide in the account registration form (the “Registration Information”) must be accurate and complete. You agree to update the Registration Information as necessary, including your correct email address, so we may send you notifications and other account-related communications. Your account is subject, in our sole discretion, to termination or suspension at any time (see “Termination” below for more details).
The Device and Use of the Service
The Services are designed to be used in connection with a Device containing our technology (e.g. an Ome Smart Knob), which you may purchase from us or one of our partners.
Subject to these Terms, Ome grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services by (i) using the Site in connection with, and solely for the purpose of, controlling and monitoring the Devices installed on your property, or that you have been validly authorized to access, or to otherwise access a service explicitly provided by Ome for your use, and (ii) installing and using the Applications solely on your own handheld mobile device (e.g., smartphone, tablet, watch) and solely for the purposes set forth in (i) above. You agree to comply with all instructions, usage rules and documentation that we may provide from time to time with respect to the Service.
Please note that we may from time to time update the Services, including without limitation, by providing bug fixes, new functionality or modifications (collectively “Updates”), and that these may occur automatically without additional notice. You hereby consent to these Updates. If you do not, please stop using the Services. We may also ask you to install Updates yourself, and you agree to do so promptly. Failure to install these Updates may expose you to security risks and/or limit our ability to provide the Services to you. Updates are subject to these Terms together with any additional terms that may be provided with such Update. Your continued use of the Service is your agreement to all such additional terms.
Content on the Services
Certain materials may be displayed or performed on the Services (including, but not limited to text, data, graphics, images, video, audio and other material (collectively “Content”). The Content is protected by copyright laws in the United States and elsewhere. The Content may be owned by us or others, including other users of the Services, or our partners, sponsors or affiliates. Use of the Services does not confer ownership rights to the Content. You may only use the Content as permitted in these Terms. We do not accept any responsibility or liability for any content posted by third parties on the Services, including content posted by other members (“Third Party Content”). Except as may be expressly agreed by us, you may use the Content solely for your personal, non-commercial use in connection with the Services, and may not distribute, modify or make derivative works of any Content.
You are solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, or that you contribute in any manner to the Services, such as photos of yourself and doorbell videos; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it; and you hereby grant a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, transferable license to Ome of all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for use and publication on the Service pursuant to these Terms.
We reserve all rights in the Service and Content not expressly granted to you by these Terms. We reserve the right to remove any Content from the Service at any time for any reason (including, without limitation intellectual property claims) or no reason at all.
Third Party Websites, Device and Services
Your Use of the Site and Services
The Site is provided by us for your personal use only. You agree to use the Site and the Services only for lawful purposes, and in a way that does not infringe the rights of, restrict or inhibit anyone else’s use and enjoyment of the Site or Services.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content via our Service that: (i) infringes, misappropriates or violates a third party's intellectual property rights, or rights of publicity or privacy; (ii) violates or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Services, or any individual elements within the Services, Ome’s name, or any Ome trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Ome’s express written consent.
- Use the Service in any manner which, in our sole judgment, degrades the user experience, reliability, speed, or operation of the Services, or any underlying hardware or software thereof;
- Access, tamper with, or use non-public areas of the Service, Ome’s computer systems, or the technical delivery system of Ome’s providers.
- Attempt to probe, scan, or test the vulnerability of any Device, Service, software, system or network or breach any security or authentication measures, or to reverse engineer, decompile or otherwise attempt to gain the source code for any Ome Service, Licensed Software or Device;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Ome or any of Ome’s providers or any other third party (including another user) to protect the Service, License Software or any Device;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Service;
- Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
- Use the Service to impersonate any person or send altered, deceptive or false source-identifying information, or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
We strongly recommend that you do not use the Service on a mobile device that has a “jail broken” or “rooted” operating system, as this can potentially allow other applications to circumvent security features on your mobile device. Any use of such mobile devices is at your own risk. You agree that Ome will not be liable for any loss of functionality and will indemnify us for all damage or liability caused by such use.
Although we’re not obligated to monitor access to or use of the Service or to review or edit any Content, we have the right to do so for the purpose of operating the Service, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to the Service or any Content therein, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
The Services will not be accessible without: (i) a working Wi-Fi network in your home that is positioned to communicate reliably with the Devices (certain Services may work without Wi-Fi); (ii) a valid user account; (iii) mobile clients such as a supported phone, tablet or watch (required for some functionality); (iv) always-on broadband Internet access in your home; and (v) other system elements that may be specified by Ome. It is your responsibility to ensure that you have all required system elements and that they are compatible, up to date, and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
The Services will not be accessible without: (i) a working cellular data connection on a supported phone, tablet or watch with the Application installed; (ii) a valid user account; (iii) other system elements that may be specified by Ome. Certain Ome Devices and Services require a Wi-Fi network connection with an always-on broadband internet connection. It is your responsibility to ensure that you have all required system elements and that they are compatible, up to date, and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met.
The Services may contain or be distributed with open source software which may be covered by a different license. You agree that all open source software shall be and shall remain subject to the terms and conditions under which it is provided, and you shall be responsible for compliance with such terms.
Except as outlined in these Terms, we do not grant you any right, title, or interest in the Services or any Ome Content. We appreciate it when users send us feedback, but please only provide feedback, comments, or suggestions that you agree we may use without limitation. You hereby grant us an unrestricted, transferable license to use any feedback, comments or suggestions that you provide without limitation.
Termination and Service Changes
These Terms remain in effect as long as you continue to use the Services. You can stop using our Services any time. We reserve the right to suspend or terminate your use of the Services or your access to the Site at any time, with or without cause, and with or without notice. For example, we may suspend or terminate your use if you are not complying with these Terms, or use the Services in any way that would cause us legal liability or disrupt others’ use of the Services. We may also change or remove at any time any features currently offered as part of the Services, or the Services themselves. Upon termination, your account and right to use the Services will automatically terminate.
If you transfer your Device to a new owner, please note that your account is not transferable, and the new owner will have to register for a separate account in order to use the Services.
Use Outside of Designated Countries
Although our website is accessible worldwide, the Devices and Services are not available to all persons or in all countries. To the extent permissible by law, Ome accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Services or Devices in a country not specifically approved by Ome. You will be bound by these Terms wherever you access or use the Services or use the Services.
Our aim is to make the Services highly reliable and available; however, they may not be available all of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Ome’s control, including without limitation, your Wi-Fi and mobile network failures and coverage limitations, service provider uptime, and acts of god. Further, our Services rely on or interoperate with a number of third party products and services. These third party products and services are beyond Ome’s control (including without the internet generally and third party service providers that we use for networking and storage), but their operation may impact or be impacted by the use and reliability of our Services. These third party products and services may not operate in a reliable manner all of the time, and they may impact the way that the Services operate, and Ome is not responsible for damages and losses due to the operation of these third party products and services. You acknowledge these limitations and agree that Ome is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications. Further, the Devices and Services are not an emergency notification system, and should not be used in this way. Ome is not responsible for dispatching emergency authorities to your home in the event of an emergency.
To the fullest extent allowed by law, Ome is not responsible for damage or liability caused by (i) use of the Device and Services for purposes other than for which the Device and Services are designed or intended, or use in improper temperature, humidity or other environmental conditions, or use of the Device or Services in violation of written instructions provided by Ome, (ii) normal wear and tear or aging, or improper repair, operation or maintenance or connections to improper voltage supply or, to the extent allowed by law, attempted repair by anyone other than a facility authorized by Ome to service your Ome Device.
The Device must be correctly installed and used with a stove that is operating in good condition. You assume all risk associated with the suitability, installation and performance of the Smart Knob and other third party components, hardware, software and services.
THE WARRANTY FOR THE DEVICE AND LICENSED SOFTWARE ARE SET FORTH IN THE LIMITED WARRANTY AND THE END USER LICENSE AGREEMENT, RESPECTIVELY.
THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE” AND OME AND ITS AFFILIATES, 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. OME AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OME OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY.
OME MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND OME WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. OME MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES. WHEN YOU INVITE GUESTS OR SERVICE PROVIDERS TO USE YOUR DEVICE OR SERVICE, YOU ASSUME ALL RESPONSIBILITY FOR THEIR USE, AND ANY DAMAGES THAT THEY MAY CAUSE TO YOU, OME, OR ANY THIRD PARTY. CHOOSE YOUR INVITED GUESTS AND SERVICE PROVIDERS CAREFULLY!
OME DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH THE DEVICES OR SERVICES (INCLUDING, BUT NOT LIMITED TO, “OTHER SERVICES” OR THIRD PARTY PRODUCTS AND SERVICES CONNECTED THROUGH OUR SERVICE) OR ANY HYPERLINKED WEBSITE OR SERVICE, AND OME WILL NOT BE A PARTY TO ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold Ome, its officers, directors, employees, affiliates, agents, licensors, and suppliers, harmless from and against any damages, claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, (i) your or your guests’ use of the Devices, Licensed Software, Site or Services, including without limitation your negligence, willful misconduct, (ii) your or your guests’ violation of law or third party right, or (iii) your or your guests’ violation of these Terms. Ome reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Ome’s prior written consent.
Our employees are not authorized to vary these Terms. These Terms may be modified only (a) by obtaining our written consent in an agreement signed by an officer of Ome; or (b) as set forth below in the immediately following paragraph.
You agree that Ome may modify these Terms from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of these Terms. We will notify you when we make material revisions or modifications to these Terms by (x) posting a notice or new version of these Terms on the Site, or (y) providing direct notice in a communication to your customer account (if you have one), or otherwise in some manner through the Service that we deem reasonably likely to reach you (which may be by posting to this Site or on our blog). The modifications will be effective upon posting (unless otherwise indicated at the time of posting). By continuing to access the Site or use the Services after revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the new terms, please stop using the Services.
Ome (or its affiliates or licensors) are the owner of all right, title and interest in and to the Site, Service, Licensed Software and Device. We reserve all rights not expressly granted in these Terms. All Services, Applications and Licensed Software are licensed and not sold.
We do not endorse any user content, feedback or any opinion, recommendation, or advice expressed on the Site or via the Services. We expressly disclaim any and all liability in connection with user Content. We will remove user Content if properly notified that such Content infringes another’s intellectual property rights in accordance with the DMCA provisions. We will terminate a user’s access to the Services if, under appropriate circumstances, the user is determined to be a repeat infringer. We reserve the right to remove user Content and/or terminate the account of user(s), at its sole discretion and without prior notice. Notifications of claimed copyright infringement should be sent to Ome’s Designated Agent set forth below.
If you are a copyright owner or an agent thereof and believe that any Content on our Site or through our Services infringes upon your copyrights, you may submit a written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information (see 17 U.S.C. 512(c)(3) for further details):
- a signature (physical or electronic) of the owner or a person who has been authorized by the owner of the allegedly infringed right to act on their behalf;
- identification of the copyrighted work or other intellectual property that has allegedly been infringed;
- identify the material on our Site or our Services that alleged to be infringing, with enough detail so that we are able to locate it on our Site or Services. Providing a URL or URLs is the most effective method of identifying such material;
- a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- information reasonably sufficient to permit Ome to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; and
- a statement that the information provided in the notice is accurate, and under penalty of perjury, that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner.
Our Agent to Receive Notification of Claimed Copyright Infringement can be reached as follows: By Email: firstname.lastname@example.org
By Mail: Attn: Legal Department
8311 Brier Creek Parkway
Suite 105, #503
Raleigh, NC 27617
If you believe that your Content that has been removed from our Site or our Services is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the Content in the manner so post or used, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
- your physical or electronic signature;
- a description of the Content that has been removed and the location at which the content appeared before it was removed;
- a statement that you have a good faith belief that the Content was removed as a result of mistake or a misidentification of the Content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in Raleigh-Durham, North Carolina, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our copyright agent, Ome may send a copy of the counter-notice to the original complaining party informing such person that Ome may reinstate the removed Content in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may (in Ome’s discretion) be reinstated on our Site and our Services by Ome in ten (10) to fourteen (14) business days or more after receipt of the counter-notice.
Miscellaneous Legal Terms
Entire Agreement/Severability. These Terms constitute the entire agreement between you and Ome regarding the use of the Services. Any failure by Ome to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. 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. Neither party is an agent or partner of the other party. The headings and section titles in these Terms are for convenience only and have no legal or contractual effect.
Applicable Law and Venue. The courts in some countries will not apply North Carolina law to some types of disputes. If you reside in one of those countries, then where North Carolina law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that these Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Devices and Services shall be governed by the laws of the State of North Carolina without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state and federal courts in or for Durham County, North Carolina for the purpose of litigating all such claims or disputes, unless such claim or dispute is required to be arbitrated as set forth in an above section.
Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Ome may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers or Services in any court of competent jurisdiction.
Force Majeure. Except for the payment of fees due under these Terms, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
Notifications. Ome may provide notifications to you as required by law or for marketing or other purposes via (at its option) email to the primary email associated with your account, hard copy, or posting of such notice on the Site or Service. Ome is not responsible for any automatic filtering you or your network provider may apply to email notifications.
You agree that, unless prohibited by law, any claim or cause of action arising out of or related to these Terms or the use of the Services, must be filed within one (1) year after such claim or cause of action arose or be forever barred, regardless of any time limit set forth in any statute or law to the contrary.
If you are a California resident, then in accordance with Cal. Civ. Code §1789.3, You may report any complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at 1-800-952-5210.
Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Ome’s prior written consent, and shall be null and void. These Terms may be assigned by Ome without restriction. These Terms are binding upon any permitted assignee.
In the event of any questions or comments or to request further information, we may be contacted by phone at 855-663-5227 or by email at email@example.com.
If you download the Application through or from any app store or distribution platform (like the Apple iStore or Google Play) where the Application is made available (each, an “Application Provider”), then you acknowledge and agree that:
- These Terms are concluded between you and Ome, and not with the Application Provider, and that, as between the two, Ome (not the Application Provider), is solely responsible for the Application.
- The Application Provider has no obligation to furnish any maintenance and support services with respect to the Application.
- In the event of any failure of the Application to conform to any applicable warranty, you may notify the Application Provider, and the Application Provider may refund the purchase price for the Application to you (if applicable) and, to the maximum extent permitted by applicable law, the Application Provider will have no other warranty obligation whatsoever with respect to the Application. As between the Application Provider and Ome, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the Application to conform to any warranty will be the sole responsibility of Ome.
- The Application Provider is not responsible for addressing any claims that you or any third party may have relating to the Application or your possession or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application 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 Application or your possession or use of that Application infringes that third party’s intellectual property rights, as between Application Provider and Ome, Ome will be solely responsible for the investigation, defense, settlement and discharge of any such claim to the extent required by these Terms.
- The Application Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the Application and that, upon your acceptance of these Terms, the Application Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Application against you as a third-party beneficiary thereof.
- To the extent the terms and conditions for the Application provided by the Application Provider are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.
- You must also comply with all applicable third-party terms of service when using the Application.
If you are a resident of the United States, then this Arbitration section applies to you. This section includes a mandatory arbitration provision for certain claims. The claims to which this section applies are described below. This section limits your and our rights. Specifically, you understand that you and Ome are waiving the right to sue in court and have a jury trial for certain claims.
To the maximum extent permitted by law, you agree that all disputes and claims arising out of, or relating to, these Terms, or your use of the Services, Licensed Software and Device (including the arbitrability of any claim or dispute and the enforceability of this section), shall be determined exclusively by final and binding arbitration. Provided however, that you agree that the terms of this arbitration section do not apply to determinations as to the ownership of any intellectual property rights in the Services, Licensed Software or Device. The arbitration shall be conducted before a single arbitration under the American Arbitration Association’s (AAA’s) Commercial Arbitration Rules and conducted in Durham, NC, USA (or in the federal court district in which you reside at the time of making a claim, if mutually agreed by you and Ome in writing in the interest of fairness). You and Ome also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. The AAA rules are available at http://www.adr.org or by calling 1-800-778-7879. You and Ome are each responsible for their respective costs relating to counsel, experts, and witnesses, and any other costs relating to the arbitration. In the event that you file for arbitration, Ome will pay for the arbitration administrative or filing fees in excess of $250 U.S. dollars, including the arbitrator and/or other AAA case management fees, for any dispute of $75,000 U.S. Dollars or less, unless the claim is determined by the arbitrator to be frivolous. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party.
CLASS ACTION WAIVER: Except as otherwise provided in this section, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Ome specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of this section, as specified below, this class action waiver will not apply to you. Neither you, nor any other user of the Services, Device or Licensed Software can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding arising out of or relating to these Terms, the Services, Device or the Licensed Software without having complied with the opt-out requirements below.
Except as expressly set forth in this section, you and Ome may litigate in court only to compel arbitration under these Terms or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. To the extent that you have breached or have indicated your intention to breach these Terms in any manner which violates or may violate Ome‘s or any of its licensor’s intellectual property rights, or may cause continuing or irreparable harm to Ome (including, but not limited to, any breach that may impact Ome ‘s or it’s licensor’s intellectual property rights, or a breach by reverse engineering), Ome may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction.
Notwithstanding the above, you or Ome may choose to pursue a dispute in court and not by arbitration if (a) the dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”). You may opt out of this Section by mailing written notification to Ome at firstname.lastname@example.org. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Ome through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with Ome. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or in small claims court. In addition, this arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. The Federal Arbitration Act, 9 U.S.C. 1, et seq. (the “FAA”) governs the interpretation and enforcement of this agreement to arbitrate. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
Ome End User Agreement
This is a legal agreement between you and Ome, Inc.
This End User License Agreement (“Agreement”) is a legal agreement between you and Ome, Inc. (on behalf of itself or its applicable subsidiary or affiliate, “Ome”) for the Ome software (the “Licensed Software”) that is provided in the form of pre-installed, embedded software on any of the Ome devices identified on Exhibit A (each, a “Device”), and all updates thereto provided by Ome (unless provided under different terms at the time of download or update). The Licensed Software is used in connection with the Ome mobile software application downloaded and installed on your mobile device (the “Application”). This Agreement is separate from, and in addition to, any Terms of Services or other documentation with respect to the Device, the Licensed Software and/or the Application.
By clicking “I Agree” (or equivalent prompt) on the Application or website or applicable platform where the Application is accessed, you agree to be bound by the terms of this Agreement.
If you do not agree to the terms of this Agreement you may return the Device (in its original, unused condition) within thirty (30) days after the date of purchase (or during the return period provided by your place of purchase, whichever is longer) for a refund in accordance with the applicable return policy as set forth in the Limited Warranty for the Device, which can be found on the Ome website at www.omekitchen.com/pages/warranty. In such case, you will also cease using, and uninstall any Application in your possession related to such Device to the extent such Application is not being used for other Devices from Ome.
1. Limited License
Subject to the terms and conditions of this Agreement, Ome grants to you a nontransferable, nonsublicensable, nonexclusive, revocable, worldwide (subject to any legal restrictions on export or use) license to download and run the Licensed Software on a single compatible Device that you own or control in accordance with the documentation and instructions provided with the applicable Licensed Software and Device, as further described below. This license is granted solely for your own personal non-commercial purposes in order to operate the Device. Such documentation and instructions shall be considered part of the Licensed Software. Without limiting the generality of the foregoing, you may make a one-time transfer of all of your license rights to the Licensed Software to a third party in connection with your transfer of ownership of the Device (including the Licensed Software embedded therein); provided, such transfer is conditioned upon the third party receiving the Device agreeing to the terms of this Agreement, and if such third party does not agree to the terms of this Agreement, such transfer shall be null and void.
PLEASE READ THE INSTRUCTIONS FOR USE OF THE LICENSED SOFTWARE: Your license to the Licensed Software is also subject to your compliance with the instructions provided by Ome at the time of purchase.
2. License Restriction
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall use the Licensed Software solely as licensed above, and shall not license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Licensed Software or make the Licensed Software available to any third party; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Device or Licensed Software (except and only to the extent such restriction is expressly prohibited under applicable law); (c) you shall not use or access the Licensed Software for benchmarking or competitive analysis, or in order to build a similar or competitive product or service; (d) you shall not let anyone tamper with the Device in a way that impact the functionality and security of the Device; (e) except as expressly stated herein, no part of the Licensed Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; (f) any future release, update, or other addition to functionality of the Licensed Software shall be subject to the terms of this Agreement, unless Ome expressly states otherwise; (g) all use shall be in compliance with applicable law, including without limitation all local laws, such as building codes and regulations; and (h) all use shall be in compliance with any third party licensing terms that govern the use of open-source components that may be included in the Licensed Software. In using the Device (whether or not such use involves use of the Licensed Software), you shall also comply with the applicable restrictions described above.
3. The Licensed Software is Proprietary to Ome
All right, title, and interest, including all intellectual property rights, in and to the Licensed Software shall be owned and retained by Ome or its suppliers. You shall not engage in any act that interferes with Ome’s business or violates or infringes Ome’s intellectual property rights or any intellectual property rights of Ome’s suppliers or vendors. Any rights not expressly granted by Ome in the Agreement are reserved. All Licensed Software is licensed and not sold, and any reference to “sale” or “purchase” shall mean the purchase of a license to the Licensed Software as set forth herein. The Licensed Software may contain or be distributed with open source software which may be covered by a different license. You agree that all open source software shall be and shall remain subject to the terms and conditions under which it is provided, and you shall be responsible for compliance with such terms.
4. Additional obligations that apply to your use of the Licensed Software, Device and Service
Compatible Device; Account. In order to operate your Device, you must have a compatible mobile device on which to download the Application. After downloading the Application, you must create an account with Ome in order to operate your Device (the “Account”) and to access Ome’s Application and services (the “Service”).
Ome Terms of Service. The use of the Service and Application is governed by Ome’s Terms of Service, available at https://ome.com/pages/terms-of-service. You must keep your Account information accurate and up to date at all times. You agree to abide by, and use the Device, Licensed Software, Application and Account in accordance with the documentation provided to you in connection with the Device, Licensed Software, Application and Account. This Agreement is separate from, and is in addition to, such Terms of Service and other applicable documentation.
Modified Terms of Service. We may from time to time provide additional or modified terms of service to you associated with your Account or the Service, including without limitation to the Terms of Service. We will provide notice of any material changes on our website (https://ome.com/pages/terms-of-service) or through other electronic contact details you have provided to us. Any such additional terms of service will take effect on the earlier of (x) the 30th day following notice of such terms of service being available to all users of the Application or (y) when you click “I Agree” (or equivalent prompt) on the applicable notification of such additional terms of service in the Application or Ome’s website.
Security. You are responsible for maintaining the security of your Device, Licensed Software, Application and Account, and you must take reasonable steps to protect your Account information and access to your Application. All use of the Device, Licensed Software, Application and Service through your Account (by you or others) is your responsibility.
5. Updates to the Licensed Software
The Licensed Software may, without additional notice, check for updates that are available for automatic download and installation to your Device and let Ome know the Licensed Software is successfully installed. If you do not want such updates, your remedy is to stop using the Device and provide Ome written notice of termination of this Agreement. If you do not cease using the Device, you will receive updates automatically. You acknowledge that you may be required to install updates to use the Device and the Licensed Software, and you agree to promptly install any updates that Ome provides. Your continued use of the Device is your consent to these updates. Failure to install these updates may expose you to security and safety risks and/or limit the functionality of the Device, Services, or Application.
7. US Government Users
The Licensed Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Licensed Software is provided to U.S. Government end users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
8. Certain Disclaimers Concerning the Device and the Licensed Software
THE DEVICE IS NOT AN ACTUAL STOVE KNOB AND IS NOT CERTIFIED BY ANY ORGANIZATION AS A STOVE KNOB. IT IS AN OPERATOR OF THE STOVE. THE DEVICE MUST BE CORRECTLY INSTALLED AND USED WITH A STOVE THAT IS OPERATING IN GOOD CONDITION. YOU ASSUME ALL RISK ASSOCIATED WITH THE SUITABILITY, INSTALLATION AND PERFORMANCE OF THE DOOR LOCK AND OTHER THIRD-PARTY COMPONENTS, HARDWARE, SOFTWARE AND SERVICES THAT YOU SELECT.
YOU ACKNOWLEDGE THAT THE DEVICE AND LICENSED SOFTWARE AND THE APPLICATION (1) ARE NOT INTENDED OR CERTIFIED FOR EMERGENCY NOTIFICATION OR RESPONSE, (2) ARE NOT INTENDED TO STOP OR PREVENT SMOKE, FIRE, OR ASSOCIATED DAMAGES AND (3) ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. OME DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL HAVE NO OBLIGATION TO DISPATCH OR CAUSED TO BE DISPATCHED EMERGENCY AUTHORITIES TO THE LOCATION THE DEVICE IS INSTALLED OR ANY OTHER LOCATION IN THE EVENT OF AN EMERGENCY. THE DEVICE, THE LICENSED SOFTWARE AND THE APPLICATION ARE NOT INTENDED FOR USE AS A HAZARD-PREVENTION OR LIFE-SAVING SOLUTION FOR PERSONS AT RISK AT THE LOCATION WHERE THE DEVICE IS INSTALLED OR OTHERWISE. YOU SHALL NOT USE OR RELY ON THE DEVICE OR THE LICENSED SOFTWARE OR THE APPLICATION FOR ANY SUCH PREVENTATIVE, EMERGENCY OR LIFE-SAVING PURPOSE, AND ANY SUCH EMERGENCY EVENTS SHOULD BE DIRECTED TO THE APPROPRIATE RESPONSE SERVICES.
9. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LICENSED SOFTWARE IS PROVIDED ON AN “AS-IS” BASIS. AUGUST PROVIDES LIMITED WARRANTIES AND REMEDIES SOLELY AS SET FORTH IN ITS LIMITED WARRANTY WITH RESPECT TO THE DEVICE HARDWARE ONLY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AUGUST, ITS AFFILIATES AND ITS SUPPLIERS, LICENSORS AND RESELLERS DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES RELATING TO THE LICENSED SOFTWARE, INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. AUGUST DOES NOT WARRANT THAT USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE LICENSED SOFTWARE IS FREE OF MALWARE, VIRUSES OR OTHER HARMFUL COMPONENTS. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE, THEN TO THE MAXIMUM EXTENT ALLOWED BY LAW, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DOWNLOAD OR PURCHASE, WHICHEVER IS EARLIER.
SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.
10. LIMITATION OF REMEDIES AND DAMAGES
NEITHER OME NOR ITS AFFILIATES, LICENSORS, OR RESELLERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS OR CONDITIONS RELATED THERETO UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA, (B) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR BUSINESS INTERRUPTION, LOSS OF REVENUES, DIMINUTION IN VALUE OR LOSS OF PROFITS; OR (D) ANY DAMAGES (REGARDLESS OF TYPE) ARISING FROM OR AS A RESULT OF USE OF THE LICENSED SOFTWARE OR THE APPLICATION BY ANY PERSON OTHER THAN YOU. THE FOREGOING SHALL APPLY EVEN IF OME KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OME’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE GREATER OF (x) THE AMOUNT PAID BY YOU FOR THE DEVICE AND (y) US$150. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS IN THIS SECTION 10, OME’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT THAT IS LEGALLY PERMISSIBLE.
11. Limitations on Claims
You agree that, unless such time limitation on filing is prohibited by law, any claim or cause of action arising out of or related to use of the Licensed Software, or this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred, regardless of any time limit set forth in any statute or law to the contrary.
To the fullest extent allowed by law, you hereby agree to indemnify and hold harmless Ome and its affiliates, suppliers, and vendors, and any of their respective officers, directors, employees and agents, from and against any and all threatened or actual claims, actions, suits, and any and all resulting losses, liabilities, damages, expenses, and costs arising out of or relating to the use or misuse of your Account, Device, Licensed Software, Application or the Service, or your negligence, willful misconduct, criminal conduct or breach of this Agreement.
13. Term and Termination
This Agreement and the licenses granted hereunder are effective on the date you first click “I Agree” on the Application or our website and shall continue unless and until this Agreement is terminated by you or Ome pursuant to this section. Ome may terminate this Agreement upon five (5) days’ notice (provided as set forth below) to you in the event you breach any of the terms of this Agreement (or immediately upon notice in the event that you materially breach any of the terms hereof). You may terminate this Agreement effective immediately upon providing Ome with written notice. Upon termination, the license granted hereunder shall terminate and you shall promptly cease any use of the Licensed Software (and, in the event the Device cannot be used without use of any of the Licensed Software, cease any use of the Device), but the terms of this Agreement which by their nature intended to survive termination will remain in effect, including Sections 2, 3, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26.
14. Certain Compliance with Laws Matters
You agree to comply with all applicable export and trade laws and regulations to ensure that neither the Licensed Software, Device, nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. You further acknowledge that the Licensed Software, Device, and technical data related thereto are subject to the United States Export Administration Regulations (“EAR”) and may not be exported or re-exported except in strict compliance with those regulations.
By using the Licensed Software you represent and warrant that: 1) you are not a Restricted Party; 2) are not operating, located, or ordinarily resident in a Restricted Territory; and 3) will not use the Licensed Software, Device or any technical data related thereto in any Restricted Territory, or directly or indirectly transfer it to, or for the benefit of, any Restricted Party or Territory.
- “Restricted Territory” means a region designated as a “terrorism supporting” country by an applicable governmental authority or prohibited by Ome policy (based on risks including corruption, fairness and transparency of local legal process, contractual commitments imposed by financial institutions, and/or applicable embargo or trade restrictions), including without limitation Cuba, Iran, North Korea, Syria, and the Crimea Region and any other region that hereinafter becomes subject to a United States or other applicable comprehensive country- or region-based economic or financial sanctions law or trade embargo.
- “Restricted Party” means: (i) any party listed in the Department of Commerce Bureau of Industry and Security’s Entity List, any list of parties subject to U.S. financial sanctions maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Sectoral Sanctions Identification List), or the U.S. Department of State, or any other applicable list of persons subject to financial sanctions or export restrictions maintained by a applicable governmental authority; or (ii) any government of, or any party that is operating, organized, or resident in, a Restricted Territory, or owned or controlled by or acting on behalf of the government of, a Restricted Territory; or (iii) any party that is owned or controlled, individually or in the aggregate, by one or more parties described in clauses (i) or (ii).
15. Amendments and Modifications to this End User License Agreement
You agree that Ome may modify this Agreement from time to time, and that your right to access the Services and use the Licensed Software is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you when we make material revisions or modifications to this Agreement by (x) posting a notice or new version of this Agreement on our website or Application, or (y) providing direct notice in a communication to your customer account (if you have one), or otherwise in some manner through the website, Service or Application that we deem reasonably likely to reach you (which may be by posting to our website or on our blog). The modifications will be effective upon the earlier of (x) the 30th day following notice of such amendment being available to all users of the Application or our website and (y) when you click “I Agree” on the applicable notification of such amendment in the Application or on our website. By continuing to access the Licensed Software or Services after revisions become effective, you agree to be bound by the revised Agreement. If you do not agree to the new Agreement, please stop using the applicable Licensed Software.
16. Confidential Information
“Confidential Information” shall mean the Licensed Software and all other information disclosed to you that Ome characterizes as confidential at the time of its disclosure either in writing or orally, or that reasonably should be considered confidential given the nature or circumstances of disclosure, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information.
You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least five (5) years after termination of this Agreement; provided, however, any source code or trade secrets you receive or have access to shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Ome. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Ome in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Ome in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Ome prior to such disclosure to allow Ome an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Ome in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
17. Assignment of this Agreement
Except for the one-time transfer described above in connection with transfer of ownership of the Device described above, neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment or transfer shall be void and without effect.
All waivers by Ome will be effective only if in writing. Any waiver or failure by Ome to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect.
You acknowledge and agree that any notice we provide to you may be delivered through the Application or by email to the email address you provided to us upon registration or by other electronic means.
21. Agreed Language
The parties acknowledge that they require that this Agreement be drawn up in the English language only. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement will govern to the extent not prohibited by local law in your jurisdiction.
22. Governing Law; Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina and the United States without regard to the conflict of laws provisions therein that would require application of the laws of another jurisdiction. Any action under or relating to this Agreement which is permitted be brought in a court pursuant to the terms for this Agreement shall be brought solely in the state and federal courts located in North Carolina with sole venue in the courts located in Durham County and each party hereby submits to the personal jurisdiction of such courts, except that Ome may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
23. Dispute Resolution; Mandatory Arbitration.
If you are a resident of the United States, then the Arbitration terms in this section apply to you. This section includes a mandatory arbitration provision for certain claims. The claims to which this section applies are described below. This section limits your and our rights. Specifically, you understand that you and Ome are waiving the right to sue in court and have a jury trial for certain claims.
To the maximum extent permitted by law, you agree that the all disputes and claims arising out of, or relating to, this Agreement, or your use of the Licensed Software and Device (including the arbitrability of any claim or dispute and the enforceability of this section), shall be determined exclusively by final and binding arbitration. Provided however, that you agree that the terms of this arbitration section do not apply to determinations as to the ownership of any intellectual property rights in the Licensed Software or Device. The arbitration shall be conducted before a single arbitration under the American Arbitration Association’s (AAA’s) Commercial Arbitration Rules and conducted in Durham, NC, USA (or in the federal court district in which you reside at the time of making a claim, if mutually agreed by you and Ome in writing in the interest of fairness). You and Ome also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. The AAA rules are available at http://www.adr.org or by calling 1-800-778-7879. You and Ome are each responsible for their respective costs relating to counsel, experts, and witnesses, and any other costs relating to the arbitration. In the event that you file for arbitration, Ome will pay for the arbitration administrative or filing fees in excess of $250 U.S. dollars, including the arbitrator and/or other AAA case management fees, for any dispute of $75,000 U.S. Dollars or less, unless the claim is determined by the arbitrator to be frivolous. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party.
24. Waiver of Class Action
Except as otherwise provided in this section, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Ome specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of this section, as specified below, this class action waiver will not apply to you. Neither you, nor any other user of the Licensed Software can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding arising out of or relating to this Agreement or the Licensed Software without having complied with the opt-out requirements below.
25. Availability of Injunctive Relief
Except as expressly set forth in this section, you and Ome may litigate in court only to compel arbitration under this Agreement or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrators. To the extent that you have breached or have indicated your intention to breach this Agreement in any manner which violates or may violate Ome’s or any of its licensor’s intellectual property rights, or may cause continuing or irreparable harm to Ome (including, but not limited to, any breach that may impact Ome’s or its licensor’s intellectual property rights, or a breach by reverse engineering), Ome may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction.
26. Ability to Opt-Out of Mandatory Arbitration
Notwithstanding the above, you or Ome may choose to pursue a dispute in court and not by arbitration if (a) the dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Section by mailing written notification to Ome at email@example.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Ome through arbitration. Your decision to opt-out of this Section will have no adverse effect on your relationship with Ome. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or in small claims court. In addition, this arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. The Federal Arbitration Act, 9 U.S.C. 1, et seq. (the “FAA”) governs the interpretation and enforcement of this agreement to arbitrate. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
27. Entire Agreement.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled.
28. Questions or Additional Information
If you have questions regarding this Agreement, or wish to obtain additional information, please send an e-mail to firstname.lastname@example.org.