dcbel General Terms and Conditions

Thank you for your interest in dcbel LLC (together with our affiliates, “dcbel,” “we,” “our,” or “us”) and our products and services. These General Terms and Conditions are a legally binding contract between you and dcbel (“Agreement”) regarding your purchase or use of the Products (defined below) we offer.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CREATING AN ACCOUNT, OR PURCHASING, USING, DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING ANY PRODUCT, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR PURCHASE OR USE OF THE PRODUCTS, YOU AGREE TO BE BOUND BY, THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE, INCLUDING DCBEL’S PRIVACY POLICY (AVAILABLE AT https://www.dcbel.energy/privacy-policy/) AND THE ADDITIONAL TERMS. If you are not eligible or do not agree to THIS AGREEMENT, THEN YOU MAY NOT PURCHASE, and you do not have our permission to use, the PRODUCTS. YOUR PURCHASE AND USE OF THE PRODUCTS, AND OUR PROVISION OF THE PRODUCTS TO YOU, CONSTITUTES AN AGREEMENT BY DCBEL AND BY YOU TO BE BOUND BY THIS AGREEMENT.

Arbitration NOTICE AND CLASS ACTION WAIVER. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under this Agreement (including any dispute arising from your purchase or use of any Product) will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND DCBEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. (See Section 17.)

1. Overview.

1.1 Scope. This Agreement governs access to and use of the following products and services (each a “Product”):

Certain hardware products and related accessories (collectively, “Hardware”);
Certain software products, including dcbel’s mobile solution (such mobile solution, the “Mobile Solution” and, together with other dcbel software products, the “Software”)
Subscriptions to hosted and cloud-based software (including Chorus) (collectively, the “Cloud Services”); and
Subscriptions to, collectively, the Hardware, Software, and Cloud Services ordered by you (such Products are, collectively, the “Platform,” and such subscriptions to the Platform are “Platform Offerings”).

1.2 Exclusions. This Agreement does not apply to your access to or use of our Platform Offerings for your (a) internal testing and evaluation of the Platform, or (b) conducting demonstrations of the Platform to customers and potential customers of dcbel (collectively, “Excluded Platform Offerings”). Your access to or use of the Excluded Platform Offerings will be governed by and subject to a separate written agreement between us and you, and not this Agreement.

1.3 Additional Terms. Your use of the Products is subject to all additional terms, policies, rules, or guidelines applicable to the Products or certain features of the Products that we may post on or link to from our websites, including the additional terms specified below ( “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement. In the event of a conflict between this Agreement and the Additional Terms, the Additional Terms will control.

Cloud Services Terms of Use (available here)
Software End User License Agreement (available here)

2. Privacy Policy. Please read the dcbel Privacy Policy (available at https://www.dcbel.energy/privacy-policy/) carefully for information about how we collect, use, store and disclose your personal information. The dcbel Privacy Policy is incorporated by this reference into, and made a part of, this Agreement.

3. Eligibility. You must be at least eighteen (18) years old to create an Account (as defined below) or to purchase Products. By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least eighteen (18) years old; (b) you have not previously created an Account that has been suspended or removed; (c) you have full power and authority to enter into this Agreement and in doing so will not violate any other agreement to which you are a party; and (d) your registration and your use of the Products is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, then: (i) the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement; (ii) you agree to be bound by this Agreement; and (iii) the term “you” shall refer to such entity. You may authorize certain individuals, who satisfy the eligibility requirements set forth in this Section 3, to access and use certain Products under the rights granted to you pursuant to this Agreement and the Additional Terms (“Authorized Users”), in which case, the term “you” shall refer to both you and your Authorized Users. You acknowledge and agree that: (a) you will at all times be responsible and liable for the acts and omissions of your Authorized Users to the same extent as if such acts or omissions had been taken by you; (b) Authorized Users will be able to (1) access, use, monitor, and control certain features and functionalities of certain Products, (2) access Customer Data, Personal Information (as such terms are defined below), and any materials or content offered through the Products, and (3) authorize additional Authorized Users under the rights granted to the Authorized User; (c) you will use your best judgment in determining who should be an Authorized User; and (d) you are solely responsible and liable for terminating Authorized Users’ access to the Products.

4. Accounts and Registration.

4.1 Account Creation. To access certain features of the Products, you will need to register a user account with us (“Account”). In order to register an Account, you will be required to provide us with some information about yourself, such as your name, email address, phone number, or other contact information. By creating an Account, you agree that the information you provide to us is accurate, current and complete, and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your Account and password, and you accept responsibility for all activities that occur under your Account. If you believe that your password has been compromised or your Account is otherwise no longer secure, then you must immediately notify us at support@dcbel.energy and change your password as soon as possible. You may not provide your password or Account credentials to any other person or access (or attempt to access) any other person’s user account. You further understand and agree that dcbel may take actions we deem reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your Account.

4.2 Consent to Electronic Communications. By creating an Account, you also consent to receive certain electronic communications from dcbel. These communications may include notices about your Account and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

4.3 Text Messaging. We, and those acting on our behalf, may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Products, as well as marketing messages. You may opt out of receiving marketing and/or operational text messages at any time by sending an email to support@dcbel.energy indicating that you no longer wish to receive such texts along with the phone number of the mobile device receiving the texts. You may continue to receive text messages for a short period while dcbel processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality of certain Products. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Products. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.

5. Orders and Delivery.

5.1 Order. You may submit orders for Products (excluding Mobile Solutions) (each an “Order”): (a) to dcbel by following the procedure for online ordering described on https://buy.dcbel.energy/ (“dcbel Online Store”), or (b) to an independent, third-party Smart Home Installation Partner (any such third party is a “SHIP” and any such Order is a “SHIP Order”) by contacting the SHIP. The purchase and sale of Products under a SHIP Order are governed by the agreement between you and the applicable SHIP (“SHIP Agreement”). Your Order constitutes an offer to purchase the Products specified in the Order for the Fees (defined below) set forth therein, and all Orders are subject to dcbel’s acceptance. Except to the extent prohibited by applicable law, dcbel may accept, decline, or place limits on your Order for any reason. You do, however, acknowledge that by clicking on the “Buy Now” button or other similar button, you agree to pay for the applicable Products specified in your Order. If dcbel rejects or otherwise does not fulfill any portion of your Order (other than a SHIP Order), dcbel will, as your sole and exclusive remedy and dcbel’s sole and exclusive liability, refund any amounts you paid to dcbel in respect of such rejected or unfulfilled portion of your Order. Once your Order has been confirmed, either dcbel or a SHIP will contact you to confirm your Order. Dates and times referenced in your Order are estimates only, and dcbel does not guarantee any specific delivery, shipment, installation, or performance dates (all of which are subject to change in dcbel’s sole discretion). If you have any questions, comments, or concerns regarding dcbel’s order acceptance policy, or if you believe that your Order was rejected in error, please contact dcbel at support@dcbel.energy. Please contact a SHIP for inquiries about its availability of Products, its pricing for the Products, and purchasing Products from the SHIP.

5.2 Order Changes. You may cancel an Order at any time upon written notice to dcbel, but, if you cancel an Order within the thirty (30) day period prior to the scheduled shipment date for the Products purchased under such Order, dcbel will be entitled to twenty-five percent (25%) of the Fees set forth in such Order. You also have the one-time right to delay the scheduled delivery date by notifying dcbel in writing of your preferred delivery date at least twenty (20) days prior to the scheduled delivery date.

5.3 Availability. Purchases of Products are subject to estimated availability, but please note that availability of Products cannot be guaranteed. We reserve the right to impose quantity limits on any Order. You may not purchase a Platform Offering if any component of the Platform to be used in connection with the Platform Offering you purchase is already provided or made available to a third party under a separate Platform Offering.

6. Fees and Payment Terms.

6.1 Price. All fees displayed on an Order (“Fees”) are shown in U.S. Dollars, and are all prices displayed on the dcbel Online Store are subject to change. You will receive a sales quotation which will include the Fees set forth in the Order, as well as any other charges due in connection with the Order (the “Final Quote”). Upon signing or otherwise executing the Final Quote, you agree to pay all Fees and charges set forth in the Final Quote, which may be billed to you in separate invoices. You agree to pay any shipping and handling charges that may be shown at the time you place an Order or that are otherwise set forth in the Final Quote. We reserve the right to increase, decrease, add, or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Taxes and other charges, if any, may apply. dcbel will collect applicable sales, use and other tax (collectively, “Tax”) that dcbel determines it has a duty to collect with respect to your Order. All Orders are non-refundable unless otherwise specified at the time of purchase or expressly set forth in this Agreement or, solely with respect to SHIP Orders, in the SHIP Agreement. dcbel reserves the right to determine and adjust pricing for any Products at our sole discretion, at any time and without notice; provided, however, that if we change the pricing or other charges associated with the Products (excluding Hardware), we will provide you with advance notice of such changes in accordance with Section 4.2. We will make reasonable efforts to keep pricing information published on the dcbel Online Store up to date. We encourage you to check the dcbel Online Store periodically for current pricing information. We, at our sole discretion, may make promotional offers with different features and different pricing. These promotional offers, unless made to you, will not apply to your offer or this Agreement. All fees and expenses are due within thirty (30) days of the invoice date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by applicable law, whichever is less. Amounts due under this Agreement may not be withheld or offset by you against amounts due to you for any reason.

6.2 Authorization; Delinquent Accounts. By providing a credit card or other payment method that dcbel accepts, you represent and warrant that you are authorized to use the designated payment method and that you authorize dcbel (or our third-party payment processors) to charge you Fees for the Products as described in this Agreement or published by dcbel, including all applicable shipping and handling costs and taxes, to the payment method you provide. The protection, security, collection, maintenance, and processing of your information by one of our third-party payment processors is subject to the terms and conditions of the third-party payment processor’s privacy policy. If you pay any Fees with a credit card, dcbel may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You authorize us to charge any credit card or payment method associated with your Account in case your primary payment method is declined or no longer available to us for payment. We may cancel any Order or limit the functionality of, or suspend or terminate your use of and/or access to, the Products (except for any units of Hardware you purchase other than as part of a Platform Offering), if you fail to make timely payments due under this Agreement. In addition to such payments, you may be charged additional fees or charges that are incidental to any chargeback or collection of any the unpaid amount due under this Agreement, including collection fees. You must resolve any payment method problems and pay any unpaid fees and charges before we fulfill your Order or reinstate and restore your access to or full use of the Products. You acknowledge that the Fees billed may vary due to promotional offers, preferences you select, changes you make to the Product you receive, or changes in applicable Taxes, and you authorize us (or our third-party payment processor) to charge your payment method for the corresponding amount. You must notify us within fourteen (14) days of the date of an applicable invoice if you have a reasonable, good faith basis to dispute the amounts due thereunder. You and dcbel will use good faith efforts to promptly resolve the payment dispute and we may require that you return, at your sole cost and expense, any Hardware for which there is a payment dispute to dcbel while the payment dispute is being resolved.

6.3 SHIP Orders. This Section only applies to purchases of Products pursuant to a SHIP Order under a SHIP Agreement. Instead of paying dcbel, you will pay applicable amounts for the Products purchased under a SHIP Order to the SHIP as agreed upon between you and the SHIP. Your Order details will be as stated in the Order placed by the SHIP with dcbel on your behalf. The applicable SHIP is responsible for the accuracy of the SHIP Order. dcbel may suspend or terminate your access to and use of the Products (except for any units of Hardware you purchase other than as part of a Platform Offering) if dcbel does not receive the corresponding payment from the SHIP for an applicable SHIP Order. If you are entitled to a refund under this Agreement, dcbel will refund any applicable fees to the SHIP and the SHIP will be solely responsible for refunding the appropriate amounts to you, unless otherwise specified in this Agreement or the SHIP Agreement. SHIPs are not authorized to modify this Agreement or to make any promises, representations, warranties, or commitments on dcbel’s behalf, and dcbel is not bound by any obligations to you other than as set forth in this Agreement. dcbel is not party to (or responsible under) any SHIP Agreement and is not responsible for the acts, omissions, products, or services of a SHIP. The amount paid or payable by a SHIP to dcbel for your access to and use of the Products purchased under the applicable SHIP Order will be deemed the amount paid or payable by you to dcbel under this Agreement for purposes of Section 14.

7. Restrictions and Limitations.

7.1 Documentation; Scope Limitations. Your use of the Products is at all times governed by and subject to the terms and conditions set forth in the Documentation and Scope Limitations. For purposes of this Agreement: (a) “Documentation” means all documentation, materials, or information, technical or otherwise, relating or used with respect to Products, including specifications, operating manuals, user instructions, and technical literature, in any form, in each case provided or made available to you by us from time to time; and (b) “Scope Limitations” means any limitations or restrictions set forth in an Order or a SHIP Order regarding your access to and use of the Products purchased thereunder. Each reference in this Agreement to the Products or a Product shall be deemed to include the applicable Documentation.

7.2 Prohibited Conduct. YOU AGREE THAT YOU WILL NOT VIOLATE ANY LAW, CONTRACT, INTELLECTUAL PROPERTY OR OTHER THIRD-PARTY RIGHT OR COMMIT A TORT, AND THAT YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR CONDUCT, WHILE ACCESSING OR USING ANY OF THE PRODUCTS. BY USING ANY OF THE PRODUCTS, YOU AGREE THAT YOU WILL ABIDE BY THIS AGREEMENT AND, EXCEPT AS EXPRESSLY PERMITTED HEREIN OR OTHERWISE PERMITTED BY DCBEL IN WRITING, YOU AGREE NOT TO:

(a) use the Products for any illegal purpose or in violation of any local, state, national, or international law;

(b) harass, threaten, demean, embarrass, or otherwise harm any other user of the Products;

(c) violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;;

(d) avoid, remove, bypass, circumvent, deactivate, impair or otherwise interfere with security-related features of the Products, including by: (i) disabling or circumventing features that prevent or limit use, printing, or copying of any content; or (ii) reverse engineering, decompiling, disassembling, or otherwise attempting to discover the source code of any portion of the Products (except to the extent expressly permitted by applicable laws);

(e) bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Products;

(f) download or install any third-party software and/or application on the Products (excluding assistive technologies that are necessary for your own use of the Products, such as screen-readers) that is not expressly permitted by us in writing;

(g) interfere with, or attempt to interfere with, the operation of the Products or any user’s access to or enjoyment of the Products, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Products; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any system, network, equipment, or server connected to or used to provide the Products, including by overloading, flooding, spamming or mail-bombing;

(h) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner (1) the information technology infrastructure used by or on behalf of dcbel to provide or make available the Products, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by dcbel or through the use of third-party services (“dcbel Systems”), or (2) our provision of the Products to any third party;

(i) attempt to access, scrape or search the Products or download content from the same, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the through the Software provided by dcbel or other generally available third-party web browsers;

(j) use any meta tags or other hidden text or metadata utilizing a dcbel trademark, logo, URL or Product name (including the dcbel brand name) without our prior express written consent;

(k) copy, use, disclose or distribute any information or data obtained through the Products, whether directly or through third parties (such as search engines or third-party websites), without our prior express written consent;

(l) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Account without permission, or falsifying your age or date of birth;

(m) sell or otherwise transfer the access and usage rights granted under this Agreement or any materials made available to you under this Agreement or any right or ability to view, access, or use any such materials;

(n) provide your password or Account credentials to any other person or use any other person’s username and password;

(o) distribute, rent, lease, sell, resell, sublicense, or otherwise permit third parties to access or use the Products;

(p) use the Products on behalf of, or to provide any product or service to, third parties (e.g., as a service bureau);

(q) use the Products to develop a similar or competing product or service;

(r) remove, alter, or obscure any proprietary notices for or displayed on the Products;

(s) perform or conduct any benchmarking or similar activities (including publishing benchmarks or performance information about the Products);

(t) attempt to do any of the acts described in this Section or assist, encourage or permit any person in engaging in any of the acts described in this Section.

7.3 Certifications and Electrical Review. You are solely responsible and liable, at your sole cost and expense, for providing all notices to, and obtaining any maintaining, all necessary and sufficient rights, permissions, licenses, certifications, approvals, consents, and authority from third parties (including all governmental, regulatory, administrative, authorities, or bodies with jurisdiction or oversight over you or your use of the Products, collectively referred to herein as “Regulators”) that are required in order to access and use the Products (collectively, “Certifications”). You represent and warrant that you will obtain all Certifications prior to accessing or using the Products. In addition, you acknowledge and agree that the Products integrate with your electrical infrastructure and that you will engage a licensed electrician to review and approve the use of the Products with your electrical infrastructure when necessary or otherwise appropriate.

7.4 Product and Service Information; Changes. While we have taken reasonable steps to depict the Products as accurately as possible through the photographs and other images, descriptions and information featured on our websites, the detailing (such as color, pattern and texture, etc.) you see on-screen will depend on your monitor and, as such, may not exactly reflect the actual detailing of the Products when you receive or access them. Additionally, the Products you receive in fulfillment of your Order may differ from what is displayed on our websites due to a number of factors, including, without limitation, system capabilities and constraints of your computer or electronic device, manufacturing processes or supply issues, and the availability and variability of the Products. We do not guarantee the accuracy of the photographs, images, descriptions and information featured on our websites. In the event of an error on our websites, in an Order confirmation, in processing or delivering an Order, or otherwise, we reserve the right to correct such error and revise your Order accordingly (including charging the correct price) or to cancel your Order and issue you a partial or complete refund. Our websites may contain information about Products that are not available in every location. A reference to a Product on our websites does not imply or guarantee that it is or will be available in your location or at a particular time. In addition, dcbel expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any Product.

7.5 Export. The Products may be subject to Canadian and U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Products to, or make the Products accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Products available outside the U.S. or Canada. You represent and warrant that: (a) you are not listed on any U.S. or Canadian government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. or Canadian government embargo or that has been designated by the U.S. or Canadian governments as a “terrorist supporting” country; (b) you will not access or use the Products in violation of any U.S., Canadian, or other applicable export embargo, prohibition or restriction; and (c) you will not submit or upload to the Products any information controlled under the U.S. International Traffic in Arms Regulations.

7.6 No Resale for Commercial Use. You are not permitted to resell, sublicense or otherwise use the Products for commercial purposes, and any such attempts will be immediately null and void.

7.7 Support Services. Please contact dcbel at support@dcbel.energy if you experience any issue with respect to the Products. dcbel is under no obligation to respond to or to resolve all or any issue reported to us or to provide any updates, upgrades, or other technical or maintenance support with respect to the Products (such technical maintenance and support services, the “Support Services”). Requests for Support Services should only be submitted to dcbel at support@dcbel.energy and not to a SHIP. We will use good faith efforts to respond to questions or concerns that you may have regarding your use of the Products and to diagnose and resolve a defect (or combination of defects) in the Products resulting in a failure of such Products to perform in accordance with the Documentation. Certain Support Services are performed remotely, including, without limitation, conducting diagnostic tests and rebooting certain Hardware, and require a stable Internet connection. To the extent that an issue is unable to be resolved through our provision of remote Support Services, we may dispatch our service personnel or a SHIP to perform on-site Support Services to resolve the issue at a mutually agreeable date and time.

7.8 Customer Systems. As between you and us, you have and will retain sole control over the operation, maintenance, and management of the information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services, used by you to use or access the Products (“Customer Systems”).

8. Intellectual Property.

8.1 Ownership; Proprietary Rights. Except for the units of Hardware you purchase (for which you will obtain title to the unit in accordance with this Agreement) other than as part of a Platform Offering, as between you and dcbel, dcbel retains all right, title, and interest in and to the Products, including all intellectual property rights therein and thereto. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to a Product (“Feedback”), then you hereby grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Products and create other products and services.

8.2 Customer Data. You hereby grant us a non-exclusive, royalty-free, fully paid-up, worldwide license, during the term of this Agreement, to use, copy, store, transmit, publicly display, modify, and create derivative works of Customer Data to provide the Products and as otherwise permitted under this Agreement, including to collect, generate, and derive Usage Data and Aggregated Data (as such terms are defined below). You represent, warrant, and covenant to dcbel that you own or otherwise have and will have the necessary rights and consents in and relating to the Customer Data so that, as received and used by us in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law. You are solely responsible for your Customer Data, including its content and accuracy, and for backing up Customer Data. dcbel will implement reasonable technical and organizational measures designed to protect Customer Data from unauthorized access, use, or disclosure. We collect and use Personal Information (as defined below) as described in our Privacy Policy, but the Privacy Policy does not apply to Customer Data. We may store and process Customer Data in the United States, Canada, or in other countries; provided that storing and processing Customer Data in such other countries is permitted by applicable laws. We will not disclose Customer Data to third parties (other than to service providers providing services to dcbel in connection with the performance of our obligations or exercise of our rights under this Agreement) unless the Customer Data has been de-identified or aggregated in a manner that does not identify you as the source of such Customer Data. For purposes of this Agreement: (a) “Customer Data” means any data, content, information, or materials that you submit, upload, or transmit to us via the Products or otherwise; and (b) “Personal Information” means any data or information that constitutes “personal data,” personal information,” “personally identifiable information,” “nonpublic personal information,” or any similar concept under the applicable laws of any relevant jurisdiction governing privacy, data protection, security, or the processing of data or information.

8.3 Usage and Aggregated Data. dcbel may use Usage Data and Aggregated Data for its internal business purposes, such as to: (a) track use of the Products for billing purposes; (b) monitor the performance and stability of the Products; (c) prevent or address technical issues with the Products; (d) to improve Products, dcbel’s other products and services, and to develop new products and services; and (e) for all other lawful business practices, such as analytics, benchmarking, and reports. For purposes of this Agreement: (a) “Usage Data” means any performance, analytical, or usage data or information relating to your access to or use of the Products that is generated or otherwise collected by the Products but excluding Customer Data; and (b) “Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies you as the source of such Customer Data.

9. Third-Party Components. The Products may include, incorporate, or permit you to use third-party products, services, materials, information, or intellectual property (“Third-Party Components”). Third-Party Components are owned by third parties and not by dcbel and may be provided to you under terms and conditions that are in addition to and/or different from those contained herein (including as may be more specifically set forth in their applicable documentation). Your access to and use of Third-Party Components may require you to pay additional fees, but, before paying any such fees, you will have an opportunity to review and accept the fees that you will be charged. Although the Products are provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict, you from obtaining Third-Party Components under the applicable third-party licenses or limiting your use of Third-Party Components under those third-party licenses. Your use of any Third-Party Components will at all times be governed by, and subject to, the applicable third-party licenses and, in the event any such third-party license contains terms and conditions that are more restrictive than those set forth in this Agreement, the more restrictive terms and conditions of the third-party license will control. The Products may include code and other components licensed under an open source license. Please contact us at support@dcbel.energy for additional information on these open source components. Certain Products may also contain or provide links to third-party websites. Linked websites are not under dcbel’s control, and dcbel is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share any User Content or information with such third-party services. Once sharing occurs, dcbel will have no control over the information that has been shared.

10. Modification of this Agreement. We reserve the right to update, change or otherwise modify this Agreement on a going-forward basis at any time and in our sole discretion. If we update this Agreement, we will provide notice of such updates, such as by sending an email notification, providing notice through our websites, the Software or Cloud Services, or updating the “Last Updated” date at the beginning of this Agreement. Updates will be effective on the date we take any of the actions set forth in the immediately foregoing sentence. We may also, in our sole discretion, require that you accept any updated Agreement in order to continue to use a Product. It is important that you review this Agreement after each update. By continuing to access or use the Products after we have posted an updated Agreement, you are agreeing to accept and be bound by the updated Agreement, including all of the terms incorporated therein by reference.

11. Term, Termination.

11.1 Term. This Agreement is effective beginning when you (a) accept this Agreement, (b) register for an Account, or (c) download, install, access, or otherwise use or receive any Product, in each such case whichever occurs first, and ending when terminated as described in Section 11.2.

11.2 Termination. Except as otherwise set forth in this Agreement (including any applicable Additional Terms), if you violate any provision of this Agreement, your authorization to access or use the Products automatically terminates (except for any units of Hardware you purchase other than as part of a Platform Offering). In addition and notwithstanding anything contained in this Agreement, subject to applicable law, dcbel reserves the right, at its sole discretion, to delete your Account and to discontinue, suspend, or terminate your access to the Software and/or Cloud Services at any time for any reason or no reason, with or without notice. You acknowledge and agree that we shall have no liability or obligation to you in such event and that, except as expressly set forth herein, you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law. If dcbel deletes your Account, you may not re-register for or use the Products (except for any units of Hardware you purchase other than as part of a Platform Offering) under any other user name or profile and we may block your access to such Products to prevent re-⁠registration. You may terminate your Account and this Agreement at any time by contacting customer service at support@dcbel.energy or as otherwise expressly set forth herein.

11.3 Effect of Termination. Except as otherwise set forth in this Agreement (including any applicable Additional Terms), upon termination of this Agreement: (a) your license rights set forth herein will terminate and you must immediately cease all use of the Products (except for any units of Hardware you purchase other than as part of a Platform Offering); (b) you will no longer be authorized to access your Account or such Products; (c) we have the right to immediately delete all data, files, and other information or User Content stored in or for your Account without further notice to you; (d) you must pay dcbel any unpaid amount that was due prior to termination; and (e) all rights to payment, causes of action, and any provision that, by their terms, are intended to survive termination will survive termination of this Agreement.

11.4 Modification of the Products. We reserve the right to modify, suspend or discontinue the Products at any time (including by limiting or discontinuing certain features of the Products), temporarily or permanently, without notice to you. Except as otherwise set forth in this Agreement (including any applicable Additional Terms), dcbel will have no liability for any change to the Products or any suspension or termination of our provision of, or your access to or use of, the Products.

11.5 Reservation of Rights. We reserve the right to monitor access to or use of the Products for the purpose of operating the Products, to ensure compliance with this Agreement, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Products and dcbel Systems. We reserve the right, but are not obligated, to remove or disable access to all or any part of the Products, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of your conduct to be objectionable or in violation of this Agreement. We have the right to investigate violations of this Agreement or conduct that affects the Products. We may also consult and cooperate with law enforcement authorities to prosecute users who violate applicable law.

12. Indemnity.

12.1 Indemnity by You. To the fullest extent permitted by law, you are responsible for your use of the Products, and you agree to indemnify, defend and hold harmless dcbel and its affiliates, and each of their respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, agents, representatives, predecessors, successors and assigns (together, the “dcbel Entities”) from and against all third-party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to: (a) any use, abusive, negligent, or misuse of the Products by you or any third party who accesses or uses the Products on your behalf or through your Account; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement or in the Additional Terms, or any applicable law, rule or regulation (including, without limitation, the U.S. National Electrical Code requirements, IEC guidelines, VDE standards, and any other applicable standards and legal requirements); (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) your User Content; (e) any Feedback you provide; (f) Excluded Claims (as defined below); (g) Customer Data; (h) any Claim arising out of property damage or bodily harm (including death) in connection with or arising out of use of the Products; or (i) any dispute or issue between you and any third party ((a) through (i), as well as any additional Claims specified in the Additional Terms, collectively, “Indemnified Claims”). You agree to promptly notify dcbel of any Indemnified Claims, cooperate with the dcbel Entities in defending Indemnified Claims, and pay all fees, costs and expenses associated with defending Indemnified Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the dcbel Entities shall have control of the defense or settlement of any Indemnified Claims (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of Indemnified Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and dcbel.

12.2 Indemnity by Us. We will defend or at our option settle any Claims brought against you alleging that the authorized use of the Products infringes any U.S. or Canadian patent, copyright, or trade secret right of a third party (“Infringement Claim”) and we will pay any final judgments awarded in any such Infringement Claim defended by us or settlements entered into by us. You will provide us with: (a) reasonable written notice of the Infringement Claim (provided that any delay in providing notice will not relieve us of our indemnity obligations under this Section unless, and only to the extent, we were prejudiced by the delay); (b) the exclusive right to control and direct the investigation, defense and settlement of the Infringement Claim (provided that no settlement admitting liability on your part may be made without your express written consent); and (c) reasonable assistance and cooperation at our sole cost and expense. You may participate in a claim with your own counsel at your own expense. Notwithstanding the foregoing, we will have no obligation under this Section for Infringement Claims arising from: (a) combination of the Products with other software, hardware, products, or technology not provided by us; (b) any modification of the Products, in whole or in part, by anyone other than us; (c) the unauthorized use of the Products; (d) Third-Party Components; (e) Customer Data; or (f) compliance with your written instructions, specifications, or requirements with respect to the Products (collectively, “Excluded Claims”). If any Product becomes, or in our reasonable opinion is likely to become, subject to an Infringement Claim, then we may at our sole option and expense: (a) procure the right for you to continue using the infringing Product; (b) replace the infringing Product with a non-infringing equivalent; or (c) in the event that neither of the foregoing is reasonably practicable, terminate this Agreement. THIS SECTION STATES THE ENTIRE LIABILITY AND OBLIGATION OF DCBEL, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS.

13. Disclaimer of Warranties.

13.1 Disclaimer. Except as expressly set forth in the Hardware Terms of Use, the Products and all materials and content available through the Products are provided “AS IS” and on an “AS AVAILABLE” basis without any warranties of any kind, either express or implied. You therefore use each Product at your own risk. DCBEL DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH ANY PRODUCT, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTIES THAT THE PRODUCTS OR ANY PART THEREOF WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. dcbel does not warrant that the Products or any portion of the Products, or any materials or content offered through the Products, will be uninterrupted, secure, or free of errors, viruses, or other harmful components, and dcbel does not warrant that any of those issues will be corrected. Without limiting the foregoing, dcbel makes no representations or warranties: (i) that the use or receipt of, or access to, any Product is or will be permitted in your jurisdiction; (ii) concerning any User Content; (iii) concerning any third party’s use of User Content that you submit; (iv) concerning any sites or resources outside of the Products, even if linked to from the Products, and including third-party sites or professional services provided by a third party; (v) that the Products will meet your personal or professional needs; or (vi) that dcbel will continue to support any particular feature of the Products.

No advice or information, whether oral or written, obtained by you from the Products or dcbel Entities or any materials or content available through the Products will create any warranty regarding any of the dcbel Entities or the Products that is not expressly stated in this Agreement or the Additional Terms. You understand and agree that you use any portion of the Products at your own discretion and risk, and that we are not responsible for any injury or damage to your property caused by the Products, or any loss of data, including User Content.

WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

THE PRODUCTS PERMIT YOU TO CHANGE CONFIGURATIONS, SETTINGS, AND OTHER PARAMETERS. THESE CHANGES CAN RESULT IN OPERATIONAL OR FUNCTIONAL ISSUES WITH THE PRODUCTS AND/OR THE SYSTEMS, INFRASTRUCTURE, OR OTHER TECHNOLOGY USED WITH THE PRODUCTS. YOU ASSUME ALL LIABILITY FOR ANY DAMAGES AND LOSSES RELATED TO YOUR CONFIGURATIONS, SETTINGS, AND OTHER PARAMETERS WITH RESPECT TO THE PRODUCTS. THE PRODUCTS DO NOT PREVENT, NOR DOES DCBEL REPRESENT OR WARRANTY IN ANY WAY THAT THEY DO PREVENT, ANY PARTICULAR HARM OR DAMAGE OR THE OCCURRENCE OF ANY PARTICULAR EVENT LIKELY TO RESULT IN SUCH HARM OR DAMAGE (INCLUDING FIRES, FLOODS, THEFT, ELECTRICAL SHOCK, AND MEDICAL ISSUES).

THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS AGREEMENT APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.

14. Limitation of Liability.

To the fullest extent permitted by law, in no event will the dcbel Entities be liable to you for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, loss of use or data, loss or diminution in value of assets or securities, damages for business interruption or any other intangible loss) arising out of or in any way relating to your access to, or use or receipt of, or your inability to access, use, or receive, the Products, or otherwise related to the subject matter of this Agreement (including, but not limited to, any damages caused by or resulting from reliance on any information obtained from any dcbel Entity, or from events beyond the dcbel Entities’ reasonable control, regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute, or any other legal or equitable theory, and whether or not any dcbel Entity has been informed of the possibility of such damages and regardless of whether such damages were foreseeable.

Except as expressly provided in Sections 17.5 and 17.6and to the fullest extent permitted by law, under no circumstances will the dcbel Entities’ joint, aggregate liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether the applicable claim is based on contract, tort, or otherwise, exceed the greater of: (i) to the extent such claim arises under or relates to the subject matter of your Order, the amount paid by you to dcbel under your Order during the 12-month period immediately preceding the date of the final judgment with respect to such claim; or (ii) $100 (USD).

Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does appropriately allocate the risks between the parties under this Agreement. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this Section 14 will apply even if any limited remedy fails of its essential purpose, and the foregoing shall constitute the dcbel Entities’ sole liability and obligation in respect hereof, regardless of the form of action, whether based in contract, tort (including negligence), statute, or any other legal or equitable theory.

To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge the dcbel Entities from and against, and covenant not to sue any such such dcbel Entity for, all claims you have or may have arising out of or in any way related to this Agreement.

15. User Content.

15.1 General. Certain features of the Products may permit users to upload content to the Products, including messages, reviews, photos, video, images, data, information, text, works of authorship and other types of materials (“User Content”) and to publish User Content on the Products. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to or through the Products. If you decide to upload and publish your User Content through the Products or through our website at www.dcbel.energy and related websites, blogs or other digital properties (the “Sites”), you understand that this User Content may be viewable by others in accordance with the privacy settings you establish.

15.2 Limited License Grant to dcbel. By providing User Content to or via the Products or through our pages or feeds on third-party social media Products, you grant dcbel a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to use, host, store, transfer, transmit, publicly display and perform, publish, reproduce, modify, adapt, make derivative works from (including, without limitation, translations), and distribute your User Content, in whole or in part, and your name, likeness, voice and persona in any manner and in any media formats and through any media channels now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without acknowledgment or compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content.

15.3 User Content Representations and Warranties. We disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Products. By uploading, posting or otherwise providing User Content via the Products, you affirm, represent, and warrant that:

(a) your User Content is nonconfidential;

(b) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize dcbel and users of the Products to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by dcbel, the Products and the Agreement;

(c) your User Content, and the use of your User Content as contemplated by the Agreement, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) contain, distribute or facilitate the distribution of a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of certain parts of the Products, in whole or in part, or any systems or equipment of dcbel or any other end user; or (iv) cause dcbel to violate any law or regulation;

(d) your User Content is accurate, complete and in compliance with the Agreement and all applicable laws, rules and regulations and is not misleading or harmful in any manner;

(e) your User Content (i) could not be deemed by a reasonable person to be objectionable, profane, indecent, obscene, pornographic, sexually explicit, harassing, threatening, embarrassing, hateful, or otherwise inappropriate, and (ii) does not contain or depict, and you may not use, any symbols, words or slurs that are widely considered offensive to individuals of a certain race, gender, ethnicity, religion, sexual orientation or socioeconomic group;

(f) your User Content does not contain, depict or promote any unreasonably dangerous or reckless behavior or activity, including without limitation violence, abuse, cruelty to animals, use of illegal drugs, excessive or inappropriate use of alcohol or legal drugs or any conduct that constitutes a criminal offense or gives rise to civil liability; and

(g) your User Content does not contain, depict or promote, any advertising or commercial activity, including without limitation by offering products or services, conducting sweepstakes or contests, or otherwise sharing or transmitting unsolicited advertising, spam or junk or bulk messages.

15.4 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. We may, however, in our sole discretion and at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates this Agreement or is otherwise objectionable, suspend or terminate your Account or access to the Products, and/or take such further steps as may be available to us including reporting you to appropriate law enforcement or governmental officials or seeking other legal or equitable remedies. You understand that when using certain parts of the Products you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against dcbel with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to the Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the User Content and/or suspend or terminate the applicable Account or access to certain parts of the Products, which we reserve the right to do at any time and without notice. For clarity, dcbel does not permit copyright-infringing activities on the Products.

15.5 Monitoring Content. We do not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Products by its users. You acknowledge and agree that dcbel reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Products for operational and other purposes. If at any time dcbel chooses to monitor the content, dcbel still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our privacy policy. We may disclose your User Content and/or any information provided to or through the Products or otherwise obtained during any such monitoring, as necessary to satisfy any law, regulation or governmental request.

16. Digital Millennium Copyright Act. dcbel respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Products.

16.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about any material on or made available through the Products, you may contact our Designated Agent at the following address:

dcbel LLC
ATTN: Legal Department (Copyright Notification)
1196 Cherry Avenue, San Bruno, CA 94066, USA
Email: legal@dcbel.energy

16.2 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

(b) a description of the copyrighted work or other intellectual property right that you claim has been infringed;

(c) a description of the material that you claim is infringing and where it is located or made available on or through the Products;

(d) your address, telephone number, and email address;

(e) a statement by you that you have a good faith belief that the use of the materials on or made available through the Products of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and

(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.

Your Notification of Claimed Infringement may be shared by dcbel with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to dcbel making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.

16.3 Repeat Infringers. dcbel’s policy is to: (a) remove or disable access to material that dcbel believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Products; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. dcbel will terminate the Accounts of users that are determined by dcbel to be repeat infringers. dcbel reserves the right, however, to suspend or terminate accounts of users in our sole discretion.

16.4 Counter Notification. If you receive a notification from dcbel that material made available by you on or through the Products has been the subject of a Notification of Claimed Infringement, then you will have the right to provide dcbel with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to dcbel’s Designated Agent through one of the methods identified in Section 16.1, and include substantially the following information:

(a) your physical or electronic signature;

(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which dcbel may be found, and that you will accept service of process from the person who provided notification under Section 16.1 above or an agent of that person.;

A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.

16.5 Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to dcbel in response to a Notification of Claimed Infringement, then dcbel will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that dcbel will replace the removed User Content or cease disabling access to it in 10 business days, and dcbel will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless dcbel’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on dcbel’s system or network.

16.6 False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [dcbel] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” dcbel reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.

17. Dispute Resolution and Arbitration.

17.1 Generally. Except as described in Section 17.2 and 17.3, you and dcbel agree that every dispute arising in connection with this Agreement, the Products, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND DCBEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

17.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

17.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to this Agreement by sending a letter to dcbel LLC, Attention: Legal Department – Arbitration Opt-Out, 1196 Cherry Avenue, San Bruno, CA 94066, USA that specifies: your full legal name, the email address associated with your Account, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once dcbel receives your Opt-Out Notice, this Section 17 will be void and any action arising out of this Agreement will be resolved as set forth in Section 18.2. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.

17.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting dcbel.

17.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). dcbel’s address for Notice is: dcbel LLC, 1196 Cherry Avenue, San Bruno, CA 94066, USA. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or dcbel may commence an arbitration proceeding. If you commence arbitration in accordance with this Agreement, dcbel will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if dcbel has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.

17.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or dcbel must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.

17.7 Arbitration Relief. Except as provided in Section 17.8, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by dcbel before an arbitrator was selected, dcbel will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.

17.8 No Class Actions. YOU AND DCBEL 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 CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and dcbel agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

17.9 Modifications to this Arbitration Provision. If dcbel makes any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30 days of the change to dcbel’s address for Notice of Arbitration, in which case your Account with dcbel will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

17.10 Enforceability. If Section 17.8 or the entirety of this Section 17 is found to be unenforceable, or if dcbel receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to this Agreement.

18. Miscellaneous.

18.1 General Terms. This Agreement, together with the Privacy Policy, Additional Terms, and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between you and dcbel regarding your use, receipt, and purchase of the Products. You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

18.2 Governing Law. This Agreement, your receipt, access to, and use of the Products, and your Order, are governed by the laws of the State of California without regard to conflict of law principles. You and dcbel submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo County, California for resolution of any lawsuit or court proceeding permitted under this Agreement.

18.3 Business Forms. The terms in any purchase order, ordering document, or business form you provide to dcbel will not amend or modify this Agreement and are expressly rejected by dcbel; any of these documents are for administrative purposes only and have no legal effect.

18.4 Force Majeure. We will not be liable to you for any failure to perform, or any delay in our performance of, any of our obligations under this Agreement or an Order or for any delay in delivery of the Product that is caused by events outside our reasonable control, including any delay or lack of access due to an unforeseeable event, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of dcbel’s control (a “Force Majeure Event”).

18.5 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Professional Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Products or to receive further information regarding use of the Products.

18.6 International Use. The Products are intended solely for users located within the United States. We make no representation that the Products are appropriate or available for use outside of the United States. Access to the Products from countries or territories or by individuals where such access is illegal is prohibited.

18.7 Publicity. Neither party may make any public announcement relating to this Agreement (including the advertisement, dissemination, or publication of any report, data, result, or other information concerning the subject matter of this Agreement) except with the other party’s prior written consent or as required by applicable laws. dcbel may reference your name and include your trademarks, logos, and other branding elements (“Marketing Materials”) in dcbel’s customer lists, promotional materials, and in connection with its marketing, advertising, promotional, or sales practices or activities; provided that you may require that dcbel cease further use of Marketing Materials upon written notice to dcbel. Neither party may disparage and/or otherwise negatively comment on the other party’s reputation, business operations, products, services, and/or relationship with such party (except that neither party will be prohibited from making truthful statements when requested to do so in the normal course of business or legal proceeding).