Last Updated: December 22, 2022
These Terms of Service (this “Agreement“) are agreed to between Helio Home Inc, a Delaware corporation (“Helio”) and you as an individual, or, if you represent an entity or other organization, that entity (in either case, “you” or “your”).Helio offers a proprietary electrification technology platform (the “Platform”) which helps homeowners understand their home’s energy consumption and annual emissions, provides recommendations on how homeowners can improve their home’s energy efficiency, facilitates a homeowner’s net-zero journey, and enables configuration of the same. You may access the Platform through the website located at https://www.heliohome.io/ and through various other websites operated by Helio (each a “Site”) or using web applications provided by and on behalf of Helio (each, an “Application”, and each Site and Application are treated as a part of the “Platform” for purposes of this Agreement).
The Platform provides Users (as defined below) with the ability to access information, data, reports, and other materials and content (collectively, “Content”), as well as additional services, features, functionality, and resources described on the Platform (together with any features or functionality available through the Platform offered via any Site or Application, collectively, the “Services”). This Agreement applies to the Platform, and Content and Services available through the Platform, regardless of the Site or Application through which you access or use the Platform, Content, or Services.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING ANY PART OF THE PLATFORM, CONTENT, OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, BY ACCESSING OR USING ANY PART OF THE PLATFORM, CONTENT, OR SERVICES OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, HELIO IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM, CONTENT, OR SERVICES AND YOU MUST NOT ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT.PLEASE BE AWARE THAT SECTION 19 (DISPUTE RESOLUTION) OF THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND HELIO HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE “LAST UPDATED” DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN YOU AND HELIO TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE ANY CLAIMS AND SEEK RELIEF AGAINST HELIO ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR ACCESS TO OR USE OF THE PLATFORM, CONTENT, OR SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF COLORADO CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
- DEFINITIONS. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States of America.
- TERM. This Agreement is entered into as of the earlier of the date you first access or use the Platform, Content, or Services (the “Effective Date”) and will continue until terminated as set forth herein.
- MODIFICATIONS. Helio may, at any time, modify or discontinue all or part of the Platform, Content, or Services or change, modify, or waive fees required to use the Platform, Content, or Services. Helio also reserves the right, in its sole discretion at any time, to modify this Agreement. When changes are made, Helio will make a new copy of this Agreement available on the Platform. Helio will also update the “Last Updated” date at the top of this Agreement. Helio will inform you of the presence of any changes to this Agreement by posting those changes on the Platform or by providing you with notice through the Platform. Any modifications will be effective immediately upon posting on the Platform or delivery of such notice through the Platform. You may terminate this Agreement as set forth below if you object to any such modifications, and in such case, you shall stop any use of the Platform, Content, and Services. Otherwise, you will be deemed to have agreed to any and all modifications through your continued use of the Platform, Content, or Services following such notice period. PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT VERSION OF THIS AGREEMENT.
- ELIGIBILITY AND NOTICE. You must be 18 years of age or older to access or use the Platform (including any Site or Application), Content, or Services. By accessing or using the Platform, Content, or Services, you represent that you are at least 18 years old. The Platform, Content, and Services are intended to be used only by individuals and entities that can form legally binding contracts under applicable law. By accessing or using the Platform, Content, or Services you agree that you meet these eligibility requirements.
5.1. Users. You are permitted to access certain Content and Services without establishing a user account on the Platform (an “Account”), provided that you have agreed to this Agreement. However, before accessing certain portions of the Platform, Content, and Services you and any person you authorize to access the Platform, Content, or Services, as well as any other end user thereof (you and any such third party, each, a “User”) are required to establish an Account on the Platform. Approval of your request to establish an Account will be at the sole discretion of Helio. Each Account and the user identification and password for each Account (the “Account ID”) are personal in nature. Each Account is for the respective User’s personal use and each respective Account ID may be used only by such User alone; thus, your Account is for your personal use only and each Account ID of yours may be used only by you alone. You may not distribute or transfer your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of the Platform, Content, and Services through your Account. You will ensure the security and confidentiality of your Account ID and will notify Helio immediately if your Account ID is lost, stolen, or otherwise compromised. You are fully responsible for all liabilities and damages incurred through the use of your Account or under your Account ID (whether lawful or unlawful), and any transactions completed through your Account or under your Account ID will be deemed to have been lawfully completed by you.
5.2. Account Registration. In connection with establishing an Account, you will be asked to submit certain information about yourself (“Registration Information”). You represent and warrant that: (a) all Registration Information you provide will be accurate, complete, and current; and (b) you will maintain and promptly update your Registration Information to keep it accurate, complete, and current. You may not: (i) use or input Registration Information of another person with the intent to impersonate that person; and (ii) use or input Registration Information that Helio, in its sole discretion, deems offensive.
6.1. User Content. “User Content” means any and all information, data, ideas, submissions, questions, reviews, comments, and other content (including, text, audio, video, photographs, illustrations, graphics, testimonials, and other media) that a User makes available in connection with their use of the Platform or Services, including any such content that a User provides, uploads, or transfers to the Platform (e.g., uploading your utility bill or photos of your home or any equipment therein) or generates through the User’s Account (e.g., content uploaded or tagged or in a public profile or posting, Registration Information, photo, or home assessment or services related information). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness, or usefulness by other Users, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). Because you alone are responsible for your User Content (and not Helio), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Helio is not obligated to back up any User Content. Helio may delete User Content at any time, for any reason or no reason, without notice. If your User Content is not shown on or is deleted from the Platform, you may contact Helio as provided herein with evidence of such User Content’s compliance with applicable Laws (as defined below).
6.3. License to your User Content. You represent and warrant that you will comply with the Acceptable Use Policy as to all your User Content. You are solely responsible for all User Content that you may provide or generate through your use of or access to the Platform. As between you and Helio, you retain ownership of your User Content. However, by providing or generating your User Content through the Platform, you grant Helio a non-exclusive, royalty-free, perpetual, irrevocable, and fully sublicensable (including to other Users and other third parties) right to use, copy, store, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display (“Use”) your User Content throughout the world in any form, medium, media, software, or technology of any kind. In addition, you waive all moral rights in your User Content or you warrant that all moral rights applicable to your User Content have been waived. You also grant Helio the right to use your name, or otherwise identify you, in connection with your User Content. You agree that you have all right, title, interest, and consent in your User Content necessary to allow Helio and its service providers to Use your User Content as set forth in this Agreement.
6.4. Feedback. If you provide Helio any feedback or suggestions regarding the Platform (or any portion thereof) or any Content or Services (“Feedback”), you hereby assign to Helio all right, title, and interest in and to the Feedback and agree that Helio shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to you. Helio will treat any Feedback you provide to Helio as non-confidential and non-proprietary. You agree that you will not submit to Helio any information or ideas that you consider to be confidential or proprietary.
7.1. To the Platform. Subject to your compliance with this Agreement, Helio will permit you to access and use the Platform, Content, and Services solely for lawful purposes and only in accordance with the terms of this Agreement and any other agreement you agree to with Helio before being given access to any specific aspects of the Platform or Services. Any additional agreement is in addition to this Agreement and will govern your use of the portions of the Platform or Services to which the additional agreement applies in the event of a conflict between the terms of this Agreement and the additional agreement.
7.2. To Applications. Subject to your compliance with this Agreement and any other terms and conditions accompanying each Application, Helio will permit you to operate those Applications solely for the purpose of using and accessing the Platform, Content, and Services as intended. You may operate each Application only on computers, mobile devices, or smart phones owned or controlled by you and used only for your own personal and non-commercial purposes in accordance with this Agreement and any applicable terms and conditions accompanying the Application or otherwise provided to you by Helio. Except as expressly set forth in the previous sentence, you are granted no licenses or other rights in or to any Application. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement you are required to agree to before being given access to any Application.
7.3. To Reminders. The Platform may allow you to set service reminders for home assessments and other services (e.g., equipment installation services) (each a “Reminder”) through text messages, emails, third-party calendar integrations, or push notifications to your device. By opting in to receive Reminders, you may also receive text messages, emails, and push notifications from Helio regarding the Platform. If you do not want to receive Reminders as push notifications (but otherwise want to receive Reminders), you may disable such push notifications through your device or browser settings, as applicable.
7.4. To Other Users. The Platform may allow you to communicate with other Users through the Platform. By connecting or communicating with other Users, you are agreeing to allow those Users to communicate directly with you through the Platform. You agree that you are solely responsible for all communications between you and any other User through the Platform. Your extension or acceptance of a connection, or other communication with another User will serve as your affirmative “opt in” to the disclosure of any of your User Content or other data or information (which may include your personal information) that you provide to that other User.
7.5. To Content. Unless otherwise noted on the Platform, all Content available through the Platform, including all text, audio, video, photographs, illustrations, graphics, and other media, is owned by Helio, the User providing User Content, or Helio’s other third-party providers. You represent and warrant that you will comply with the Acceptable Use Policy as to all Content available through the Platform. All Content is provided for informational purposes only and you are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for your use of any Content. Subject to your compliance with this Agreement, you may access the Content solely for your own personal and noncommercial purposes in connection with your own use of the Platform and Services. Helio has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Content. Each User is solely responsible for any and all of its User Content. Because Helio does not control User Content, you acknowledge and agree that Helio is not responsible for any User Content. Helio makes no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and Helio assumes no responsibility for any User Content. Your interactions and transactions with any other User are solely between you and such User. You agree that Helio will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any other User, Helio is under no obligation to become involved. Without limiting the foregoing, Helio will not be held liable to you or any other third party for any Content (including your User Content) under a federal law called the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, you are granted no licenses or other rights in or to any Content, or any IPR therein or related thereto. If you would like to use any Content in a manner not permitted by this Agreement, please contact Helio.
- YOUR SERVICES. Except as otherwise expressly provided herein, you are solely responsible for any services you offer, provide, or make available through the Platform (collectively, “Your Services”). You agree that none of Your Services will: (1) violate this Agreement, including the Acceptable Use Policy; or (2) violate any applicable Laws or cause Helio or any other User to violate any applicable Laws.
9.1. Placing Your Orders. You may be permitted to place orders seeking to purchase equipment, and other products, services, and offerings (collectively, “Products”) available for sale on the Platform (whether in the form of an online order submitted through the Platform or an order submitted by way of email, phone, or other form permitted by Helio, each an “Order”). By submitting any Order, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY METHOD OF PAYMENT UTILIZED IN CONNECTION WITH THAT ORDER. All Orders are subject to acceptance by Helio, in its sole discretion, and Helio may limit or restrict quantities of Products purchased without notice to you, even after the Order has been placed. You authorize Helio (or a company chosen to act on behalf of Helio) to charge the credit card, debit card, mobile services account, or other payment method provided in connection with any purchase or other transaction made through your Account or otherwise made by you through the Platform or Services and agree to honor all charges incurred in connection with any such transaction.
9.2. Terms of Sale, Refunds, and Returns. In addition to this Agreement, your purchase of any Products is governed by the terms displayed on the Platform in connection with each Product and any additional terms provided to you in connection with your Order or any acceptance of your Order provided by Helio, for example, if a Product is non-refundable, not available for returns, or if other terms apply, and includes Helio’s shipping and return policies (taken together, the “Terms of Sale”). By placing an Order, you agree to be bound by the Terms of Sale with respect to that Order and all Products included in that Order. If this Agreement conflicts with the Terms of Sale, the Terms of Sale will govern and control with respect to the Products provided to you under that Order. Risk of loss and title to any Products you purchase pass to you upon delivery and installation of those Products to your home. Any Product descriptions or visualizations on the Platform are for convenience purposes only, and Helio does not represent that they are accurate. This includes size, weight, color, and other specifications provided. If a Product is listed at an incorrect price or with incorrect information, Helio shall have the right to refuse or cancel any Order placed for those Products, whether or not the Order has been confirmed or your credit card has been charged. If your credit card has already been charged for an Order and the Order is canceled, Helio will issue you a credit or refund in the amount of the charge. Please note that for any sales tax errors, the issuance of a refund for the amount in error will be the exclusive remedy. For more information about how you can return a Product, or for questions related to shipping, please reach out to us at email@example.com. You may also review our Frequently Asked Questions page located at https://www.heliohome.io/faqs.
9.3. Promotions. Helio may offer Users special free trials, promotional codes, credits, awards, or other discounts (“Promotions”). All Promotions will be offered at the sole discretion of Helio, and can be modified or terminated at any time by Helio with or without advance notice. Promotions may be offered on a limited time basis and may be subject to certain restrictions. As part of a Promotion, Helio may offer credits to charges that are non-transferrable, non-refundable for cash, and may be subject to additional terms and conditions.
9.4. Payment Processor. Unless otherwise stated in the Platform, Helio payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By utilizing Helio for payment processing services, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Helio enabling payment processing services through Stripe, you agree to provide Helio accurate and complete information about you and your business (if applicable), and you authorize Helio to share with Stripe such information and transaction information related to your use of the payment processing services provided by Stripe.
- TERMINATION. This Agreement may be terminated by either party at any time, in that party’s sole discretion, upon notice to the other party as permitted under this Agreement. Upon termination or expiration of this Agreement for any reason: (1) all rights and licenses granted to you under this Agreement will terminate; (2) you will immediately cease all use of and access to the Platform and all Content and Services (including all Content you obtained prior to termination or expiration); and (3) Helio may, in its sole discretion, delete your User Account and any of your User Content held by Helio. Sections 1 (Definitions); 6 (Content); 8 (Your Services); 9 (Payment); 10 (Termination); 12 (Platform Technology); 13 (Ownership); 14 (Representations and Warranties); 15 (Indemnity); 16 (Limitation of Liability); 17 (Data Privacy); 18 (Claims of Infringement); 19 (Dispute Resolution); 20 (Governing Law and Venue); 21 (Notices); 22 (Linked Sites); 23 (Additional Terms); 24 (Questions, Complaints, Claims); and 25 (Contact Information) will survive any expiration or termination of this Agreement.
- SUSPENSION. Without limiting Helio’s right to terminate this Agreement, Helio may also suspend your access to your User Account and the Platform or any Content or Services (including your User Content), with or without notice to you, upon any actual, threatened, or suspected breach of this Agreement or applicable Law or upon any other conduct deemed by Helio, in its sole discretion, to be inappropriate or detrimental to the Platform, Services, Helio, or any other User or third party.
- PLATFORM TECHNOLOGY. The Platform, and the databases, software, hardware, and other technology used by or on behalf of Helio to operate the Platform, and the structure, organization, and underlying data, information, and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Helio. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (3) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Technology; (4) harvest, collect, gather, or assemble information or data regarding other Users, including email addresses, without their consent; (5) alter, modify, reproduce, create derivative works of the Technology; (6) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Technology; (7) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Technology, or otherwise make the Technology available to any third party; (8) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (9) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (10) interfere with the operation or hosting of the Technology; or (11) introduce software or automated agents or scripts to the Technology so as to produce multiple accounts, generate automated searches, requests, and queries, or to strip, scrape, deep link, or mine Content from the Technology (except that Helio grants the operators of public search engines revocable permission to use spiders to copy materials for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).
- OWNERSHIP. Helio retains all right, title, and interest, including all IPR, in and to the Technology and any additions, improvements, updates, and modifications thereto. You receive no ownership interest in or to the Technology and you are not granted any right or license to use the Technology itself, apart from your ability to access the Platform, Content, and Services under this Agreement. The names and logos of Helio, and all product and service names associated with the Platform, Content, and Services are trademarks of Helio and its licensors and you are granted no right or license to use them.
- REPRESENTATIONS AND WARRANTIES.
14.1. Mutual. Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement.
14.2. Compliance with Laws; Prohibition against Criminal Behavior. You acknowledge that the Platform is a general purpose online service and is not specifically designed to facilitate compliance with any specific Law. You acknowledge that you will access and use the Platform in compliance with all Laws applicable to you, your User Content, and any other Content or Services you may access through the Platform. Helio is not responsible for notifying you of any such Law, enabling your compliance with any such Law, or for your failure to comply. You represent and warrant to Helio that your User Content, Your Services, and your use of and access to the Platform, including any Content or Services, will comply with all applicable Laws and will not cause Helio itself or any other User to violate any applicable Laws.
14.3. No Warranties; Disclaimer. THE PLATFORM, CONTENT, AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. HELIO AND ITS LICENSORS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, OR ADEQUACY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT OR OTHER DATA, INFORMATION, OR USER CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. HELIO AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES, AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HELIO OR ITS EMPLOYEES, AGENTS, OR LICENSORS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
- INDEMNITY. You hereby agree to indemnify, defend, and hold harmless Helio and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, users, customers, providers, licensees, and successors in interest (each, an “Indemnified Party”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation (“Claim”) against any Indemnified Party arising in any manner from: (1) your access to or use of the Platform, Content, or Services; (2) your User Content or any access to or use thereof; (3) Your Services or any access thereto or use thereof; (4) any access to or use of your User Content or Your Services by any other User; (5) your collection, use, and disclosure of any User Content; (6) your violation of applicable Laws; or (7) your breach of any representation, warranty, or other provision of this Agreement. Helio will use reasonable efforts to provide you with notice of any such Claim, and Helio will have the right to participate in the defense of any such Claim at its expense.
- LIMITATION OF LIABILITY. HELIO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF OR ACCESS TO THE PLATFORM, CONTENT, OR SERVICES, EVEN IF HELIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY LOSS OF YOUR USER CONTENT, OPPORTUNITY, REVENUES, PROFITS, OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS, OR SERVICES. HELIO’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS AGREEMENT OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF $300 OR THE TOTAL AMOUNT PAID BY YOU TO HELIO RESULTING FROM ANY ORDERS MADE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. YOU AGREE THAT HELIO WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, HELIO’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- CLAIMS OF INFRINGEMENT. Helio respects your copyrights and other intellectual property rights and those of other third parties. If you believe in good faith that your copyrighted work has been reproduced on the Platform without your authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:
Helio Home Inc
Attn: Helio Copyright Agent
2451 S Jasmine PlaceDenver, CO 80222
Please provide the following information to Helio’s copyright agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) your name, address, daytime phone number, and email address, if available; (3) a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and (5) your electronic or physical signature. Helio will take whatever action, in its sole discretion, it deems appropriate, including removing the allegedly infringing work from the Platform.
- DISPUTE RESOLUTION. PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. It requires you to arbitrate disputes with Helio and limits the manner in which you can seek relief from Helio.
19.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access to or use of the Platform, Content, or Services or to any aspect of your relationship with Helio, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if your claims qualify, and (b) you or Helio may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the “Last Updated” date of this Agreement or any prior version of this Agreement.
19.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Eric Reinhardt, Attn: Helio Home Inc, 2451 S Jasmine Place, Denver, CO 80222. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing, or other fees and you cannot obtain a waiver from JAMS, Helio will pay them for you. In addition, Helio will reimburse all such JAMS filing, administrative, hearing, or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
19.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement, and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Helio. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Helio.
19.4. Waiver of Jury Trial. YOU AND HELIO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Helio are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
19.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this Subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the state or federal courts located in the State of Colorado. All other claims shall be arbitrated.
19.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to Helio Home Inc, Attn: Legal, 2451 S Jasmine Place, Denver, CO 80222, or firstname.lastname@example.org, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter into in the future, with Helio.
19.7. Severability. Except as provided in Section 19.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of this Arbitration Agreement shall continue in full force and effect.
19.8. Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of your relationship with Helio.
19.9. Modification. Notwithstanding any provision in this Agreement to the contrary, the parties agree that if Helio makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Helio at email@example.com with a subject line that must include “Arbitration Agreement Notice”.
- GOVERNING LAW AND VENUE. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations, or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A., as such laws apply to contracts between residents of Colorado without regard to conflict of laws provisions thereof. Subject to Section 19 (Dispute Resolution), each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal or state court in the State of Colorado, U.S.A., and you irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Helio.
- NOTICES. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Helio by postal mail to the address for Helio listed in Section 25 below. Helio may provide you with any notices required or allowed under this Agreement by sending you an email to any email address you provide to Helio in connection with your User Account, provided that in the case of any notice applicable both to you and other Users of the Platform, Helio may instead provide such notice by posting on the Platform. Notices provided to Helio will be deemed given when actually received by Helio. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via email, unless (as to email) the sending party is notified that the email address is invalid.
- LINKED SITES. The Platform, Content, or Services may contain links to third-party sites or content that are not under the control of Helio. If you access a third-party site or content from the Platform or Services, then you do so at your own risk and Helio is not responsible for any content on any linked site. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of your site by Helio or any group or individual affiliated with Helio. You may not use on your site any Content or marks appearing on the Site or Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without Helio's prior written consent.
- ADDITIONAL TERMS. Unless otherwise amended as provided herein, this Agreement will exclusively govern your access to and use of the Platform, Content, and Services; is the complete and exclusive understanding and agreement between the parties regarding such subject matter; and supersedes any oral or written proposal, agreement, or other communication between the parties, regarding your access to and use of the Platform, Content, and Services. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by Helio under this Agreement must be in writing or later acknowledged by Helio in writing. Any waiver or failure by Helio to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Helio of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of you hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Helio. Any purported assignment or delegation in violation of the foregoing will be null and void. Helio may assign this Agreement to any party that assumes Helio’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other, or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Any reference herein to the words “include”, “includes”, and “including” will mean “include”, “includes”, and “including”, in each case, “without limitation”. Upon request from Helio, you agree to provide Helio with such documentation or records with respect to your activities under this Agreement as may be reasonably requested for Helio to verify your compliance with the terms of this Agreement and all applicable Laws.
- QUESTIONS, COMPLAINTS, CLAIMS. If you have any questions, complaints, or claims with respect to the Sites, Applications, Platform, Content, or Services, please contact Helio at firstname.lastname@example.org. Helio will do its best to address your concerns. If you feel that your concerns have been addressed incompletely, Helio invites you to let it know for further investigation.
Helio Home Inc
Attn: Legal – Terms of Service
2451 S Jasmine Place,
Denver, CO 80222