Terms of Service Agreement

Terms of Service Agreement

THIS TERMS OF SERVICE AGREEMENT IS INCLUSIVE OF THE CIELO PRIVACY POLICIES (“PRIVACY POLICIES”) AND ANY AND ALL OTHER APPLICABLE OPERATING RULES, POLICIES, PRICE SCHEDULES AND OTHER SUPPLEMENTAL TERMS AND CONDITIONS OR DOCUMENTS THAT MAY BE PUBLISHED FROM TIME TO TIME, WHICH ARE EXPRESSLY INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THIS AGREEMENT GOVERNS YOUR USE OF THE PRODUCTS AND SERVICES, AS WELL AS THE WEBSITE LOCATED AT CIELOWIGLE.COM (THE “SITE”), ALL AS PROVIDED BY CIELO WIGLE, INC. BY ACCESSING AND/OR USING THE SITE AND/OR A CIELO WIGLE PRODUCT OR ACCEPTING A CIELO WIGLE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND YOU AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE TO THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS AND/OR USE THE SITE, PRODUCTS AND/OR SERVICES.

This Agreement describes the terms and conditions under which Cielo WiGle Inc. (“Cielo” or “we” or “us” or “our”) will provide you (“you” or “your” or “Customer”) with access to the Site and/or use of Cielo products and equipment, including Cielo smart thermostats, Cielo smart AC controllers, Cielo Sense and Cielo Linked (the “Product(s)”), and the related services, systems and software, including web applications and web portals (collectively, the “Services”) for the location in which the Product is installed (the  “Premises”). “Additional User” shall mean any agent, employee, contractor, assignee, or other authorized individual that uses the Services to access, use, and/or control a Cielo Product.  Whether or not specifically stated, “you” or “your” within this Agreement shall at all times include you and your Additional Users.

Use of our Cielo mobile application is governed independently by the Cielo End User License Agreement (“EULA”), available at https://cielowigle.com/legal/eula

Basic Cielo Services are currently provided at no cost; however, a monthly service fee may apply for additional capabilities. We may change our prices, fees, the Services and/or the terms and conditions of this Agreement in the future. Unless this Agreement or applicable law specifies otherwise, we will give you thirty (30) days prior notice of any material changes to this Agreement. We may provide such notice on your monthly bill, as a bill insert, using the email address you have provided to us, using the Cielo portal, or other communication permitted under applicable law.  If you find the change unacceptable, you have the right to cancel your Service(s) by providing us with notice that you terminate your Services. However, if you continue to receive Service(s) after the end of the notice period (the “Effective Date”) of the change, we will consider that you have accepted the changes.

1. Acceptance:

By accessing and/or using the Site, the Products and/or the Services, you are agreeing to and accepting all the terms and conditions in this Agreement, as well as the terms and conditions in the End User License Agreement (EULA) for use of the native mobile application and the Cielo Privacy Policies associated with the Product(s), the Services and the Site. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose. Cielo Privacy Policies are available at https://cielowigle.com/legal/ , each of which are incorporated in this Agreement for reference.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ADDITIONAL USER, A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND THAT ADDITIONAL USER, ENTITY AND ITS AFFILIATES TO THIS AGREEMENT IN WHICH CASE THE TERMS “YOU” OR “YOUR” OR “CUSTOMER” IN THIS AGREEMENT WILL REFER TO THAT INDIVIDUAL, ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCTS OR SERVICES. THIS TERMS OF SERVICE CONSTITUTES A BINDING AGREEMENT BETWEEN YOU AND CIELO.

2. Maintenance and Ownership of Equipment:

CIELO HAS NO RESPONSIBILITY FOR THE OPERATION OR SUPPORT, MAINTENANCE OR REPAIR OF ANY THIRD PARTY EQUIPMENT, SOFTWARE OR SERVICES  (the “Customer Equipment”) THAT YOU ELECT TO USE IN CONNECTION WITH THE CIELO PRODUCTS OR SERVICES, EXCEPT AS PROVIDED IN THE CIELO MOBILE APPLICATION END USER LICENSE AGREEMENT WITH RESPECT TO OUR CIELO MOBILE APPLICATION.

To use the Services, you will need a compatible broadband gateway / router. You agree to keep the gateway connected, and your Internet connection active, at all times. We have the unrestricted right, but not the obligation, to upgrade or change the firmware in the Product devices (whether they are owned by you or us) remotely at any time that we determine an upgrade or change necessary to continue to provide Services to you in accordance with our specifications and requirements.

2a. Non-Recommended Configurations: 

Customer equipment that does not meet our minimum technical configuration constitutes a “Non-Recommended Configuration.” NEITHER CIELO NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE OR USE THE SERVICES. YOU ACKNOWLEDGE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE THE PRODUCT TO FAIL TO OPERATE OR CAUSE DAMAGE TO THE PRODUCT, YOU AND/OR YOUR PREMISES. NEITHER CIELO NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE.

We reserve the right to deny you customer support for the Services and/or terminate Services if you use a Non-Recommended Configuration.

2b. No Unauthorized Devices or Tampering:

You agree not to attach any unauthorized device to the Services. If you make any unauthorized connection or modification to the Services, we may terminate your Services and recover such damages as may result from your actions. Unless expressly authorized by us, you agree not to install anything to intercept or receive any of the Services offered to you or to assist any person in intercepting or receiving any of the Services offered to you. You also agree that you will not attach anything to Customer Equipment, whether installed by you or us, which singly or together with the Customer Equipment impairs the integrity of the Services.

3. Restricted Use of Services:

You agree that the Services will be used only by you and/or your Additional Users. You agree and represent that you will not resell or permit another to resell the Services in whole or in part. You will not use or permit another to use the Services, directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any posted Cielo policy applicable to the Services. Use of the Services for transmission, communications or storage of any information, data or material in violation of any applicable regulation or law is prohibited. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Services, including Additional Users, and that you shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable Cielo policies including, but not limited to, Cielo use and privacy policies. You further acknowledge and agree that you shall be solely responsible for any transactions, including, without limitation, purchases made through or in connection with the Services. You agree to indemnify, defend and hold harmless Cielo and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) arising out of the misuse of the Services and/or the Products or the breach of this Agreement or violation of any of the applicable Cielo policies or agreements by you or any Additional User.

4. Term and Termination:

4a. Term:

This Agreement will be in effect from the time the Services are activated until (i) it is terminated as provided by this Agreement or (ii) it is replaced by a revised Agreement.

4b. Termination by You:

You have the right to cancel your Services by properly disconnecting the Products and providing us with notice that you terminate your Services and the Services for any Additional User linked to or accessing your Product(s).

4c. Suspension and Termination by Cielo:

Cielo reserves the right, subject to applicable law, to act immediately and without notice to terminate or suspend the Services at Cielo’s sole discretion in the event that you have used our Services in violation of this Agreement. After termination, data transfer may continue until you properly disconnect the Products, and the Services are able to be cancelled or terminated.  Third party controllers, utility and smart energy program partners, or Additional Users you have authorized to access or control your device may also continue to have access until you properly terminate and/or disconnect with them.

4d. Your Obligations upon Termination:

You agree that upon termination of this Agreement and/or Services you will immediately cease all use of the Services.

4e. Termination of Service Subscriptions:

If you fail to pay the full amount for any add-on paid Service Subscriptions due and payable to Cielo or a third party, then Cielo, at its sole discretion in accordance with applicable law, may suspend or disconnect any or all the Services you receive.

5. No Warranty:

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE SERVICES SHOULD NOT BE USED AS AN ALARM OR ALERT TO (i) PROTECT AGAINST THE LOSS OF PERSONAL PROPERTY, (ii) BE USED FOR MEDICALLY RELATED PURPOSES OR APPLICATIONS, AND (iii) BE USED FOR PERSONS WITH HEIGHTENED SENSITIVITIES TO HEAT AND COLD. NEITHER CIELO NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT THE SERVICES WILL DELIVER SPECIFIC RESULTS OR MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER CIELO NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WILL WORK PROPERLY WHEN USED WITH A THIRD-PARTY CONTROL DEVICE. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED.   YOU MAY, NEVERTHELESS, HAVE RIGHTS THAT VARY FROM STATE TO STATE.

6. Limitation of Cielo’s Liability 

6a. Application:

The limitations of liability set forth in this Section 6 apply to any acts, omissions, and negligence of Cielo and its affiliates, suppliers, employees, agents or contractor, including underlying third-party service providers (and their respective officers, employees, agents, or contractors) which, but for these provisions, would give rise to a cause of action in contract, tort or under any other legal doctrine.

6b. Customer Equipment:

CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, AND REMOVAL OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR THE RESULTS OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY CIELO, NEITHER CIELO NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY CIELO, ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS, WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY. YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE ACCESSED OR USED EITHER BY YOU OR BY US OR OTHER THIRD PARTIES, IN CONNECTION WITH THE INSTALLATION OR REPAIR OF THE CIELO HARDWARE OR SERVICES. THE OPENING, ACCESSING OR USE OF YOUR COMPUTER OR OTHER DEVICES USED IN CONNECTION WITH YOUR COMPUTER MAY VOID WARRANTIES PROVIDED BY THE COMPUTER OR DEVICE MANUFACTURER OR OTHER PARTIES RELATING TO THE COMPUTER’S OR DEVICE’S HARDWARE OR SOFTWARE. NEITHER CIELO NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.

6c. Other Services or Equipment:

BY ACCEPTING THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE ALL CLAIMS AGAINST CIELO FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE CIELO SERVICES AND ANY OTHER SERVICES, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 4.

6d. Software:

When you use certain features of the Services, such as online features (where available), you may require special software, applications, and/or access to the Internet. Cielo makes no representation or warranty that any software or application installed on Customer Equipment, downloaded from the Services, or available through the Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND IN THE ABSENSE OF GROSS NEGLIGENCE OR RECKLESS MISCONDUCT BY CIELO, NEITHER CIELO NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT.

6e. Disruption of Service:

The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to injury to business, persons, property or environment (“High Risk Activities”). You expressly assume the risks of any damages resulting from High-Risk Activities. We shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the Premises; failure of any internet connection; failure of utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. If any credits are provided by Cielo to compensate for a disruption of services, they are provided in our sole discretion and in no event shall constitute or be construed as a course of conduct by Cielo.

6f. Third Parties:

Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Services, including without limitation their services, equipment, infrastructure, or content. Cielo shall not be bound by any undertaking, representation or warranty made by an agent or employee of Cielo or our underlying third-party providers and suppliers in connection with the installation, maintenance or provision of the Services, if that undertaking, representation or warranty is inconsistent with the terms of this Agreement. In addition, you understand that you will have access to the services and content of third parties through the Service(s), including without limitation that of content providers (whether or not accessible directly from the Service). Cielo is not responsible for any services, equipment, infrastructure and content that are not provided by us (even if they are components of the Service or recommended by us), and we shall have no liability with respect to such services, equipment, infrastructure and content. You should address questions or concerns relating to such third party services, equipment, infrastructure and content to the creators of such services, equipment, infrastructure and content. While our Products may be compatible with third party products, we do not endorse or warrant any third-party products, services or content that are distributed or advertised over the Services.  You or your Additional Users connection to a third party product authorizes Cielo to transfer information to that third party to operate the service(s).

6g. Limitation of Damages:

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CIELO NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER, ADDITIONAL USER, OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS: (I) INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH: (A) YOUR RELIANCE ON OR USE OF ANY PRODUCT AND/OR THE SERVICES; (B) THE INSTALLATION,  MAINTENANCE, FAILURE, OR REMOVAL OF ANY PRODUCT AND/OR THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, COMPUTER OR OTHER HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION OR FAILURE OF PERFORMANCE OF THE SERVICE, THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF INFORMATION OR DATA OR DAMAGE TO YOUR HVAC SYSTEM); AND/OR (C) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY PERSONALLY IDENTIFIABLE OR NON-PERSONALLY IDENTIFIABLE INFORMATION THAT WAS COLLECTED BY AND/OR THROUGH THE SITE OR OTHER SITE OFFERINGS INCLUDING, WITHOUT LIMITATION, SEARCH TERMS ENTERED ON THE SITE, WEBSITE REFERRERS, DEVICE TYPES (DESKTOP, MOBILE, TABLET, ETC.), BROWSER TYPES, SITE PAGES VISITED, TIME SPENT ON EACH SITE PAGE, NAVIGATION PATH THROUGH THE SITE, AND/OR ANY ACTION TAKEN ON THE SITE, INCLUDING CLICKS, DOWNLOADS, PURCHASES, FORM SUBMISSIONS AND ADD TO CART/ABANDONED CART ACTIONS; OR (II) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CIELO’S (INCLUDING CIELO’S AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS) TOTAL LIABILITY TO YOU FOR ALL DIRECT DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE TOTAL PRICE PAID FOR THE PRODUCT AND/OR SERVICE. NO ACTION. REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER AND/OR ANY ADDITIONAL USER MORE THAN ONE (1)YEAR AFTER THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET OUT IN THIS AGREEMENT MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

6h. Customer’s Sole Remedies:

Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. If the above limitations, the exclusion or limitation of implied warranties, or the limitation or exclusion of incidental or consequential damages are not permitted by law, the liability of Cielo and its employee, affiliates, suppliers, agents and contractors is limited to the maximum extent permitted by law.

6i. Survival of Limitations:

All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.

7. Indemnification And Liability Of Customer 

YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS CIELO AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF THE FOLLOWING BY YOU AND ANY OF YOUR ADDITIONAL USERS (I) MISUSE OF THE SERVICE; (II) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM MISUSE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; (III) BREACH OF ANY PROVISION OF THIS AGREEMENT; (IV) ACCOUNT ACCESS OR ACTIVITY DUE TO FAILURE TO PROTECT LOG-ON CREDENTIALS; AND (V) ANY CAUSE OF ACTION BY ANY OF YOUR ADDITIONAL USERS, INCLUDING ANY AND ALL ALLEGATIONS, SUITS, CLAIMS AND PROCEEDINGS (INCLUDING REASONABLE ATTORNEYS’ AND PROFESSIONAL FEES) (COLLECTIVELY, “CLAIMS”) AND ALL RELATED DAMAGES INCURRED BY YOU OR CIELO AS A RESULT OF OR ARISING FROM YOUR ADDITIONAL USER’S BREACH OR ALLEGED BREACH.  IT IS UNDERSTOOD AND AGREED THAT YOU THE CUSTOMER ASSUMES FULL LIABILITY FOR A BREACH BY ANY OF YOUR ADDITIONAL USERS OF THIS AGREEMENT.

8. General   

8a. Entire Agreement:

This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and they replace any and all prior written or verbal agreements. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. If Cielo fails to insist upon or enforce strict performance of any provision of this Agreement, it shall not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.

8b. Personal Information:

In addition to representations and warranties you make elsewhere in this Agreement, you also represent and warrant that during the term of this Agreement, you have provided and will provide to Cielo information that is accurate, complete and current, including without limitation your legal name, address, telephone number(s), email address and payment data (including without limitation information provided when authorizing recurring payments). You agree to notify us promptly, in accordance with the terms of this Agreement, if there is any change in the information that you have provided to us. If you fail to provide and maintain accurate information, you will breach this Agreement.

8c. Privacy:

Please see our Privacy Policy, available at https://cielowigle.com/legal for more information on the data we collect from you and how we use and share that data. We will collect, use and disclose your personal information as set out in that Privacy Policy and by using the Products and Services you consent to us doing so.

8d. Information Provided to Third Parties:

Notwithstanding anything to the contrary contained herein, you acknowledge and understand that Cielo may use third parties to provide components of the Services.  For example, subject to all applicable laws: (i) certain of the Services use third-party activity analytics and tracking providers to enable us to monitor and improve the user experience on the Cielo app; and (ii) we may use third-party activity and tracking analytics providers in connection with the Site. These third-party providers use cookies and similar technologies to collect information, such as IP address, device information (e.g., operating system), and information on user behavior (e.g., screens visited, buttons clicked, limited information entered, and user taps).  For additional information on the third party tracking associated with the Site and/or Cielo app, please see our Privacy Policies.  Cielo is not responsible for any information provided by you or any Additional Users to third parties, including via devices that provide third party control such as the following utility and smart energy programs: Apple HomeKit, Google Home or Amazon Alexa. You assume all privacy, security and other risks associated with providing personally identifiable information to third parties via the Services, whether provided by you or your Additional Users. For a description of the privacy protections associated with providing information to third parties, you should refer to the privacy policies, if any, provided by those third parties.

8e. Revocable License:

The Products and Services are protected by trademark, copyright, patent and/or other intellectual property laws and international treaty provisions. You are granted a revocable license to use the Products and the Services in accordance with this Agreement. You acknowledge and understand that you are not granted any other license to use the firmware or software used to provide the Services. You shall not take any action nor allow anyone else to take any action that will reverse compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.  Cielo retains the non-revocable license to use or incorporate feedback.

8f. Protection of Cielo’s Information and Marks:

All Service information, documents, and materials on our Web sites are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All Web sites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of Cielo and its affiliates are and shall remain the exclusive property of Cielo. Nothing in this Agreement shall grant you the right or license to use any of the marks.

8g. Export Laws:

You expressly agree to comply with all applicable export and re-export laws, including but not limited to the Export Administration Act, the Arms Export Control Act, and their implementing regulations. You further expressly agree not to use the Services in any way that violates any provision of these export and re-export laws or their implementing regulations.

8h. Retention of Rights:

Nothing contained in this Agreement shall be construed to limit Cielo’s rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, Cielo and its suppliers reserve the right to delete all your data, files, electronic messages or other Customer information that is stored on Cielo’s or its suppliers’ servers or systems. We shall have no liability whatsoever as the result of the loss of any such data.

9. Dispute Resolution and Arbitration:

PLEASE READ THIS SECTION CAREFULLY. PLEASE FOLLOW THE INSTRUCTIONS BELOW.

9a. Governing Law; Arbitration:

This Agreement shall be treated as though it were executed and performed in New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles).  Cielo and you agree to arbitrate all disputes and claims that arise from or relate to this Agreement, the Site, the Services and/or the Products in any way. THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. This agreement to arbitrate is intended to be broadly interpreted, including, for example: (1) claims arising out of or relating to any aspect of the relationship between us that is created by or involves this Agreement, the Site, the Services and/or the Products, regardless of the legal theory; (2) claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us; (3) claims that arose before you accepted this Agreement (such as claims related to disclosures or the marketing of the Services and/or Products, or the process for seeking approval to use the Services or Products); (4) claims that may arise after the termination of your use of the Site, Services and/or Products or any agreement between us; and (5) claims brought by or against Cielo’s subsidiaries, parent companies, members and affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors and assigns (collectively, “Covered Parties”).

9b.

This arbitration agreement does not bar 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.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE, LAW, YOU UNDERSTAND AND AGREE THAT WE ARE EACH (1) WAIVING THE RIGHT TO A TRIAL BY JURY; (2) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.

9c. Notice of Disputes:

If you intend to seek arbitration of a dispute, you must first, before initiating an arbitration proceeding, provide us with an initial notice of dispute (“Initial Dispute Notice”) in writing, a form of which can be found here. The Initial Dispute Notice should be sent to: Cielo Legal Department 168^th Ave NE, SUITE 103, Redmond, WA, 98052, USA, (support@cielowigle.com). Your Initial Dispute Notice must (1) provide your name, mailing address, and email address; (2) describe the subject dispute; (3) identify the specific Covered Parties you are naming in your dispute (“Named Parties”); and (4) state the relief you are requesting. The Named Parties may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”).

9d. Arbitration Procedures:

If the applicable Named Party(ies) provide(s) you with a Final Settlement Offer and you do not accept it, or such Named Party(ies) cannot otherwise satisfactorily resolve your dispute within sixty (60) days after the Initial Dispute Notice is received and you wish to proceed, you must : (1) provide Cielo with proof that you have accessed the Site, Products and/or Services and provided consent to this Agreement; and, thereafter (2) submit your dispute for resolution by arbitration before JAMS, by filing a separate Demand for Arbitration, which is available here.  The arbitration shall be governed by New York State law and the then current General Arbitration Rules & Procedures of JAMS (“JAMS Rules”); provided, however, that Cielo reserves the right to require that any and all of your claims be combined and conducted under the JAMS Mass Arbitration Procedures and Guidelines where there are seventy-five (75) or more arbitration demands pending against Cielo that are similar to the demand for arbitration submitted by you. Unless you and Cielo agree otherwise, any arbitration hearings will take place in the county where you are accessing the Site, Products and/or Services. If the value of your claim is USD $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by telephone, or by an in-person hearing. If the value of your claim exceeds USD $10,000, the right to a hearing will be determined according to the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. All issues are for the arbitrator to decide. The arbitrator may consider, but is not bound by, rulings in other arbitrations between Cielo and Cielo users. The arbitrator can award the same individualized damages and relief that a court can award. Any award rendered shall be final and conclusive to the parties and a judgement on the award may be entered by any court having jurisdiction.

9e. Costs of Arbitration:

The JAMS fee schedule is subject to change and may be found online in the JAMS Rules. Cielo will pay all JAMS filing, administrative and arbitrator fees for any arbitration that Cielo commences.  If the arbitrator awards you relief that is greater than the subject Final Settlement Offer, then the applicable Named Party(ies) will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, the Named Party(ies) will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Although the Named Party(ies) may have a right to an award of attorneys’ fees and expenses if Named Party(ies) prevail(s) in arbitration, the Named Party(ies) will not seek such an award from you unless the arbitrator determines that your claim was frivolous.

9f. No Class Arbitration:

The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND CIELO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED GROUP LITIGATION OR PRIVATE ATTORNEY GENERAL PROCEEDING. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit.  You agree to pay the attorney’s fees and court costs that any Named Party incurs in seeking such relief.  Further, unless Cielo determines otherwise, including where there are seventy-five (75) or more arbitration demands pending against Cielo that are similar to the demand for arbitration submitted by you, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or group proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.  This provision preventing you from bringing, joining or participating in class action lawsuits: (1) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (2) is an independent agreement.

9g. 30-Day Opt-Out Period:

If you do not wish to be bound by the arbitration and class-action waiver provisions in this Agreement (collectively, the “Dispute Resolution Provisions”), you must notify Cielo in writing within thirty (30) days of the date that you first accept this Agreement (unless a longer period is required by applicable law). Your written notification must be mailed to Cielo at the following address: Cielo Legal Department, 168^th Ave NE, Suite 103, WA 98052, USA, or emailed here: support@cielowigle.com. If you do not notify Cielo regarding your opt-out from these Dispute Resolution Provisions within that thirty (30) day period, you agree to be bound by these Dispute Resolution Provisions. Such notification must include: (1) your name; (2) your Cielo account email address; (3) your mailing address; and (d) a statement that you do not wish to resolve disputes with Cielo utilizing these Dispute Resolution Provisions. This notification affects this Agreement only.  If you previously entered into other arbitration agreements with Cielo or enter into other such agreements in the future, your notification that you are opting out of the Dispute Resolution Provisions contained in this Agreement shall not affect the other arbitration agreements between you and Cielo.

9h. Future Changes to Arbitration Provision:

If Cielo makes any changes to the Dispute Resolution Provisions of this Agreement (other than a change to the address at which Cielo will receive Initial Notices of Dispute, opt-out notices or rejections of future changes to these Dispute Resolution Provisions), you may reject any such change by sending us written notice within thirty (30) days of the change to Cielo Legal Department, 168^th Ave NE, Suite 103, WA 98052, USA, or emailing us here: support@cielowigle.com; provided, however, that any amendment or modification to these Dispute Resolution Provisions shall not apply to any disputes incurred prior to the applicable amendment or modification. It is not necessary to send us a rejection of a future change to these Dispute Resolution Provisions if you had properly opted out of these Dispute Resolution Provisions within the first thirty (30) days after you first accepted this Agreement.

10. Charges and Billings for Paid Service Subscriptions 

If you sign up for additional add-on Services that are Service Subscriptions directly with Cielo, not a third party or contractor, additional terms and conditions apply and may be found within the specific portals or applications of that paid Service Subscription, or by separate agreement between you and Cielo.  The additional terms, in combination with these Terms of Service, will constitute the entire Agreement for the Product or Services, including any paid Service Subscriptions.

If you sign up for a paid service with a third party or contractor, terms of that relationship are between you and the third party and not with Cielo.  You acknowledge that you may incur charges with third-party service providers or contractors. These may include charges resulting from accessing the Internet, purchasing or subscribing to other offerings via the Internet or purchasing equipment for use with or recommended by the Service. You are solely responsible for all charges payable to third parties, including all applicable taxes.

11. Notice Method  

You agree to accept all communications from us regarding use of the Services at the address and/or email address you provide during registration. Please promptly update any changes to your account registration information. Cielo is entitled to rely on the email address and mail address that you last provided to us. You agree to waive all claims resulting from failure to receive communications because of changes in your email or mail address. From time to time we would like to send you information about Cielo products and services. If you register for a Service, you are granting Cielo permission to communicate with you by email.

12. Binding Consent

You agree to be bound by any affirmation, assent or agreement you transmit through the Services you access by computer or other electronic device, including internet, telephonic and wireless devices, including but not limited to any consent you give to receive communications from us solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field with your mouse, keystroke or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.

Contact Address of Cielo:  

Email: support@cielowigle.com

Customer Support Team
7901, 168th Ave NE
Suite #103
Redmond, WA, 98052
Telephone: +1 425 529 5775