These Terms of Service (this “Agreement”) constitutes a legally binding contract between Curb, Inc., a Delaware corporation with an address of 3601 S. Congress Ave, Suite I-100, Austin, Texas 78704 USA (“Curb,” “Company,” “we,” “us,” “our”) and you with respect to your use of our services, APIs, websites, or mobile applications (collectively, the “Service”). More information about the Service may be found at https://energycurb.com/.
It is important that you carefully read and understand the terms and conditions of this Agreement. BY ACCESSING OR USING THE COMPANY’S PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, ITS WEBSITE AND MOBILE APPLICATIONS, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OFTHE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE COMPANY’S PRODUCTS AND SERVICES.
In order to access other portions of the Service, you must first register or link an account (“Account”)or the device you use to access the Service (“Device”) with Curb. If you are a service provider of Curb’s, you must agree to these Terms of Service as a condition of your service agreement with Curb. BY USING THE SERVICE, OR BY INDICATING YOUR ASSENT TO THIS AGREEMENT BY REGISTERING OR LINKING YOUR ACCOUNT OR DEVICE WITH CURB, CLICKING “I ACCEPT” OR ANY SIMILAR MECHANISM, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE OR REGISTER OR LINK AN ACCOUNT OR YOUR DEVICE WITH CURB.
If you register or link an Account or Device on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to this Agreement and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Service. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and Curb have against each other are resolved (see Section 11 (Limitation of Liability), Section 15 (Dispute Resolution), and Section 16 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 15(D). Unless you opt-out: (A) you will only be permitted to pursue claims against Curb on an individual basis, not as part of any class or representative action or proceeding and (B) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
We reserve the right to, at any time, with or without cause:
· change the terms and conditions of this Agreement;
· change the Service, including eliminating or discontinuing any service or other feature of the Service; or
· deny or terminate your use of and/or access to the Service.
Curb may make changes to this Agreement. The most current version will be located at https://energycurb.com/terms/. If Curb makes material changes to the terms and conditions of this Agreement or to any service or other feature of the Service, Curb will notify you by posting a notice on our website and/or sending an email to the address Curb has on file for your account, if applicable. Please ensure this address remains current so you will receive updates. You must accept such changes in order to continue to use and access the Service. If you do not accept such changes your use and/or access to the Service will be terminated.
Before using the Service, you may need to register with Curb and create an Account. We reserve the right to decline to provide the Service to any person for any or no reason. If and when you register with or provide information to Curb, you agree to: (a) provide accurate, current, and complete information as prompted (including your e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Service. By providing Curb with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including any notices required by law.
You are solely responsible for the activity that occurs on your Account. You must keep your Account credentials (including username and password) secure at all times. You may not share your Account with any third parties without Curb’s prior written consent unless such third party has separately entered an agreement with Curb permitting it to access your Account. You must notify Curb immediately of any breach or suspected breach of security or unauthorized use of your Account. Curb will not be liable for any losses caused by any unauthorized use of your Account.
You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
You may not use the Service, or assist or encourage any other party, to engage in any of the following prohibited activities:
· Copying, framing, or mirroring any part of the Service;
· Accessing the Service for purposes of monitoring its availability, performance, or functionality;
· Permitting any third party to access the Service;
· Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling, or otherwise attempting to extract the source code of the software underlying the Service or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to Curb;
· Publishing, transmitting, distributing, or storing content, material, information, or data that: (a) is illegal, obscene, defamatory, libelous, threatening, harassing, abusive, or hateful or that advocates violence or threatens the health of others; (b) is harmful to or interferes with the Service or any third party’s networks, equipment, applications, services, or websites (e.g., viruses, worms, Trojan horses, etc.); (c) infringes, dilutes, misappropriates, or otherwise violates any privacy, intellectual property, publicity, or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets, or other proprietary information (including unauthorized use of domain names); or (d) is fraudulent or contains false, deceptive, or misleading statements, claims, or representations (such as “phishing”);
· Attempting to disrupt, degrade, impair, or violate the integrity or security of the Service or the computers, services, accounts, or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Curb internet protocol space;
· Avoiding payment of incurring charges or fees payable by you with respect to the Service;
· Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
· Using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Curb than a human can reasonably produce in the same period of time by using a conventional web browser;
· Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
· Collecting or harvesting any personally identifiable information, including account names, from the Service;
· Using the Service for any commercial solicitation purposes;
· Impersonating another person or otherwise misrepresenting your affiliation with a person or entity,conducting fraud, hiding or attempting to hide your identity;
· Accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
· Submitting to the Service or to Curb any personally identifiable information, except as necessary for the establishment and operation of your Account;
· Submitting to the Service or to Curb any information that may be protected under HIPPA (“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented) or any other information that may be protected from disclosure by applicable law;
· Bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
· Violating any applicable law, statute, ordinance, or regulation, or encourage any conduct that could constitute a criminal offense or give rise to civil liability;
· Transmitting any trade secret or other material, non-public information about any person, company, or entity without the authorization to do so;
· Removing any copyright, trademark, or other proprietary rights notices contained in or on the Service;
· Sublicensing selling, renting, leasing, transferring, assigning, or conveying any rights under this Agreement to any third party, except as expressly permitted herein;
· Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine, or display any packets used to communicate between the Service’s servers or any data not intended for you; and/or
· Harvesting or collecting information about any Service visitors or members without their express consent.
Improper use of the Service may result in termination of your access to and use of the Service, and/or civil or criminal liabilities. You agree to use the Service in accordance with all applicable laws.
We understand that many of our customers want a 3rd party entity, such as a solar provider, electric utility company, an appliance maintenance company, and/or a property owner, landlord, or property maintenance provider(each an “Accessor”), to have electronic access to their historical and real-time energy usage data, including energy consumption amounts by circuit and times of use, as well as any location and other personal information that may be stored on CURB devices and servers, not including credit card or other payment information, (collectively referred to as “Data”) via the CURB Services. Please note that in some instances, we may be required by law or regulation, or by contractual obligation, to share your information with an Accessor to provide you with the Services. In the event this paragraph applies to you, you hereby consent to our sharing of Data to such Accessor.
This Data may be used to assist Accessors with the installation of CURB hardware, installation of related energy products, troubleshooting and other system performance related matters, and to provide energy management services. If your Curb system was installed by and/or is being maintained by a 3rd party entity, such as a solar provider, electric utility company, an appliance maintenance company, property owner, and/or property management provider, then you may have one or more designated Accessors and the following terms shall apply to you in addition to the other sections of this Agreement:
· You authorize your Accessor to access your Data;
· You are responsible for ensuring that your Accessor safeguards the Data from further disclosure without your consent;
· CURB is not responsible for the privacy or security practices of any such third-party Accessor, and before interacting with any third-party Accessor, you are advised to review their rules and policies before opting in to provide them with your Data;
· You attest that you have read, understood and authorize CURB to provide your Accessor with electronic access to your Data (including historical and real-time energy usage data as well as any location and other personal information that may be stored on CURB devices and servers, not including credit card or other payment information)via CURB Services;
· CURB DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIABILITY ARISING OUT OF OR RELATED TO YOUR OR YOUR ACCESSOR’S IMPROPER INSTALLATION AND/OR CONFIGURATION OF ONE OR MORE CURB SYSTEMS, YOUR OR YOUR ACCESSOR’S IMPROPER MAINTENANCE AND/OR REPAIR OF ONE OR MORE CURB SYSTEMS, YOUR OR YOUR ACCESSOR’S IMPROPER USE OF ONE OR MORE CURB SYSTEMS, OR THE MALFUNCTION OF OR DAMAGE TO ANY HARDWARE, SOFTWARE, DEVICE, SYSTEM AND/OR APPLIANCE;
· CURB DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIABILITY ARISING OUT OF OR RELATED TO YOUR AUTHORIZATION TO RELEASE DATA TO YOUR ACCESSOR, THE UNAUTHORIZED USE OF THE DATA BY YOUR ACCESSOR, AND ANY ACTIONS TAKEN BY YOUR ACCESSOR PURSUANT TO THIS AGREEMENT;
· CURB PROVIDES THE DATA TO ACCESSOR ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, OR QUALITY;
· CURB SHALL NOT BE HELD LIABLE FOR RADIO COMMNUNICATIONS, NETWORK, INTERNET, COMPUTER, HARDWARE, OR SOFTWARE PROGRAM MALFUNCTIONS, FAILURE, DELAYS, OR DIFFICULTIES WITH THE ACCESSOR’S ACCESS TO DATA AT ANY TIME;
· CURB SHALL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES ARISING OUT OF OR RELATED TO ACCESSOR’S USE OR MISUSE OF THE DATA, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES;
· YOU UNDERSTAND AND AGREETHAT THE MAXIMUM AMOUNT THAT CURB CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCE IS THE AMOUNT THAT YOU PAID, IF ANY, FOR GRANTING ACCESS TO AN ACCESSOR, AND IN NO CASE WILL THAT AMOUNT EXCEED $100;
· IF NO AMOUNT IS PAID BY YOU TO CURB FOR GRANTING DATA ACCESS TO AN ACCESSOR, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW;
· You agree to hold harmless, indemnify, and defend CURB, its officers, employees, agents, successors, and assigns, from and against any and all claims, demands, losses, damages, rights, and actions of any kind, including, but not limited to, property damage, infringement, personal injury, and death, that either directly or indirectly arise out of or are related to your Accessor’s use or misuse of the Data, your use or provision of any services or products purchased from Accessor, your reliance upon advice provided by Accessor, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party; and Your obligation to defend CURB under the terms of this Agreement will not provide you with the right to control CURB’s defense, and CURB reserves the right to control its defense and choose its counsel and participate in the settlement of a claim against it regardless of your contractual requirement to indemnify CURB.
Failure to abide by these terms may result in termination of your access to and use of the Service, and/or civil or criminal liabilities.
If you or your company installs and/or maintains Curbs for others, then the following terms shall apply to you in addition to the other sections of this Agreement:
· No warranties shall apply to (a) any CURB Product which has been altered or changed after receipt by you without CURB’s authorization; (b) any failure of any CURB Product to conform to such warranties as a result of improper maintenance, installation or service, operation or use contrary to furnished instructions; (c) any CURB Product if the storage of such Product exceeds storage shelf time; or (d) any CURB Product exposed to any abuse, misuse, neglect, or negligence by you or your end-users;
· It is understood and agreed that the CURB Product may be used in connection with and as components of a larger system, and that such inclusion into the larger system does not and shall not constitute an unauthorized alteration or change in the CURB Product; provided that the design and implementation of such inclusion into the larger system is in conformity with CURB’s specifications;
· CURB DISCLAIMS ANY RESPONSIBILITY FOR AND SHALL NOT DEFEND OR INDEMNIFY YOU FOR ANY CLAIMS AGAINST YOU BY ANY 3RD PARTY THAT ARISES FROM: (1) the combination, use or operation, of a CURB Product with any equipment, devices, software, or technology that is not contemplated by CURB, including in combination with any equipment, devices, software, or technology necessary for the CURB Product to operate in conformity with its documentation, provided that, without limitation, no equipment, device, software or technology shall be considered “necessary” if a commercially practical alternative thereto that would avoid the alleged infringement or injury exists; (2) the modification of a CURB Product by you or any 3rd party, which modification CURB did not approve in writing; (3) your material breach of the agreement; (4) compliance by CURB with any requirements or instructions provided by you; (5) any CURB Product installed or operated (X) in accordance with any documentation you provide that differs from CURB’s corresponding documentation provided to you or (Y) in any case that you provided no CURB Product documentation, in either case where installation or operation in accordance with CURB’s documentation provided to you would be reasonably likely to have avoided the claim against you; or (6)CURB Products remaining in the field or in your inventory after reasonable request by CURB to conduct a product recall;
· You agree to hold harmless and defend, or at your option, settle, any claim, demand, suit, or proceeding made or brought against CURB by a third party alleging that: (1)your products, equipment, devices, or software, incorporating a CURB Product (each, “Your Product”), infringe an Intellectual Property Right of such third party; (2) Your Product caused personal injury, death, or damage to property; (3) any disruption, degradation, impairment, or violation of the integrity or security of the CURB Product(s) caused by you or your systems; or (4) any grossly negligent or more culpable act or omission of you or your personnel (including any recklessness or willful misconduct) in connection with the performance of this Agreement; (each of (1)-(4) above, a “Claim Against CURB”), and will indemnify CURB from finally-awarded judgments awarded against CURB as a result of, or for amounts paid by CURB under a court-approved settlement of, a Claim Against CURB, provided that CURB complies with the indemnification procedure set forth in this Section;
· You agree that the above defense and indemnification obligations do not apply to the extent a Claim Against CURB arises from any CURB Product installed and operated other than in accordance with Your Product documentation that does not differ from CURB’s Product documentation provided to BUYER, where installation or operation in accordance with such BUYER’s Product documentation would be reasonably likely to have avoided the Claim Against CURB;
· Your obligation to defend CURB under the terms of this Agreement will not provide you with the right to control CURB’s defense, and CURB reserves the right to control its defense and choose its counsel and participate in the settlement of a claim against it regardless of your contractual requirement to indemnify CURB;
Failure to abide by these terms may result in termination of your access to CURB Products, termination of your access to and use of the Service, and/or civil or criminal liabilities.
1. Your Rights. Subject to the terms and conditions of this Agreement (including any restrictions on any applicable authorization or order form), you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. Curb reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel, or otherwise.
2. Company Rights.
· Feedback and Improvements. You may choose to or we may invite you to submit comments, suggestions, feedback, or ideas about the Service, including, without limitation, about how to improve the Service or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction. We are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Curb will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, Curb does not waive any rights to use similar or related ideas previously known to Curb, or developed by its employees, or obtained from sources other than you.
1. Proprietary Rights. The Service is owned and operated by Curb, and the Service (and any intellectual property and other rights relating thereto) is and will remain the property of Curb and its licensors and suppliers. The Service is protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. The Service may be used solely (a) to the extent permitted in this Agreement or (b) as expressly authorized in writing by authorized representatives of Curb or, if so indicated in writing by Curb, its licensors or suppliers. Use of the Service for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Service. The trademarks, logos, and service marks displayed on the Service (collectively, the “Company Trademarks”) are the registered and unregistered trademarks of Curb, Curb’s licensors and suppliers, and/or others. Nothing contained in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Company Trademark(s) without the express written permission of Curb, Curb’s licensors or suppliers, or the third-party owner of any such Company Trademark. Subject to the rights granted to Curb in this Agreement, as between you and Curb, you retain all right, title, and interest in and to your User Content.
You hereby affirm that you are over the age of eighteen (18), as the Service is not intended for individuals under 18. If you are under 18 years of age, then you may not use the Service. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
This Agreement is effective from the date on which you first access the Service or submit any User Content to Curb, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Curb may immediately terminate this Agreement, and/or your access to and use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. Curb may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Service shall immediately cease and you shall cease all use of the Service. Upon termination or expiration of this Agreement for any reason, Sections 1, 2, 3, 4(B), 4(C) and 7-19 shall survive.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate Curb to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.
THE SERVICE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE, AND YOUR RELIANCE THEREON.
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER CURB NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. CURB’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). NEITHER CURB NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES WILL HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES, EXPENSES, OROTHER LIABILITY INCURRED BY YOU AS A RESULT OF ANY INACCURACY, INCOMPLETENESS, OR MISREPRESENTATION OF ANY INFORMATION, CONTENT, POSTINGS, OR SUBMISSIONS PROVIDED OR POSTED ON THE SERVICE BY THIRD PARTIES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You (and also any third party for whom you operate an account on the Service) agree to fully indemnify, defend (at Curb’s request), and hold Curb, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants, and other representatives (collectively, the “Company Parties”) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement;(b) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Service or other websites to which the Service is linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Service; (f) any service or product offered by you in connection with or related to your use of the Service; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
Curb makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas, or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.
Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
1. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to Curb’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Service shall be finally settled by binding arbitration administered by JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc.) in accordance with the then current provisions of its procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Curb will pay the additional cost. You and Curb hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Curb is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
1. Class-Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
2. Exception—Litigation of Small-Claims-Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
3. Thirty-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: firstname.lastname@example.org. The notice must be sent within 30 days of registering to use the Service; otherwise, you shall be bound to arbitrate disputes in accordance with this Agreement. If you opt out of these arbitration provisions, Curb also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Curb may terminate your use of the Service.
4. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Curb and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
This Agreement and your relationship with Curb Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 15, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Travis County, Texas and you consent to the exclusive jurisdiction of the federal or state courts located in Travis County, Texas.
The Service shall be deemed “commercial computer software” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Service by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
The provisions in this Section 18 will apply if you access or download the Services using the Apple App Store.
This Agreement is between you and Curb only, and not with Apple, Inc. (“Apple”). Apple is not responsible for the Service nor your use or possession thereof. The license grant in Section 4 is conditioned on you accessing and using the service solely on an Apple device that was sold to you or that you control and in accordance with the terms and conditions of the App Store Terms of Service as of the Effective Date found here: http://www.apple.com/legal/internet-services/itunes/us/terms.html (“App Store Terms of Service”). In case of a conflict between this Agreement and the App Store Terms of Service the terms of the App Store Terms of Service shall prevail.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
Without limiting any of Curb’s rights herein, Apple is not responsible for addressing any claims of you or a third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) any third party claim that the Services or your possession and use of the Service infringes a third party’s intellectual property rights. Apple will not be responsible for the either the investigation, defense, settlement or discharge of any such claims.
Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived, or modified except by a written instrument signed by Curb. If any employee of Curb offers to modify this Agreement, he or she is not acting as an agent for Curb or speaking on Curb’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of Curb or anyone else purporting to act on Curb’s behalf. Except as otherwise set forth in this Agreement, this Agreement is between you and Curb; there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with Curb’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. Curb may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on Curb at email@example.com (in the case of Curb) or to the e-mail address you have designated on your Account (in your case). Notice to you shall be deemed given 24 hours after the e-mail is sent. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
Effective as of January 17, 2022