~ LAST UPDATED MAY 2020 ~
California Alarm Company License No. ACO719
525 Almanor Avenue, Suite 200
Sunnyvale, CA 94085
SELF-INSTALLED SECURITY SYSTEM SALES AND SERVICES AGREEMENT
READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OOMA’S SYSTEM OR USING OOMA’S SERVICES.
This agreement (“Agreement”) is made between Ooma, Inc. (“Ooma”, “we”, “us”, or “our”) and you (“Customer”, “you”, or “your”). This Agreement governs your purchase of a self-installed security system provided by Ooma (“System”), our provision of the services you have selected (“Services”), and your use of the System and the Services. A complete view of the System and Services that you have activated is available via the Ooma mobile app. If you have selected central station monitoring service, Ooma shall have either Rapid Response Monitoring Services, Inc., or another monitoring company at Ooma’s sole discretion (“Central Station Monitoring Provider”), provide professional monitoring services for your System, as described herein. You agree that Ooma is authorized and permitted to subcontract any Services to be provided by Ooma to third parties who may be independent of Ooma. You acknowledge that this Agreement, and particularly those Sections below relating to Ooma’s disclaimer of warranties, exemption from liability (even for its negligence), limitation of liability and indemnification, inure to the benefit of, and are applicable to any assignee, subcontractors and communication centers of Ooma.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS (SEE SECTION 13 FOR MORE INFORMATION).
THIS AGREEMENT CONTAINS YOUR CONSENT FOR US TO CONTACT YOU VIA TELEPHONE OR SMS MESSAGES (INCLUDING TEXT MESSAGES) USING THE PHONE NUMBER(S) AND E-MAIL ADDRESS(ES) YOU PROVIDE TO US, INCLUDING VIA AUTOMATED DIALING OR TEXTING SYSTEMS (SEE SECTION 15 FOR MORE INFORMATION).
YOU REPRESENT TO US THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND FULLY UNDERSTAND AND AGREE TO ITS TERMS AND CONDITIONS. YOU AND OOMA AGREE THAT CHECKING THE ‘I ACCEPT’ BUTTON REPRESENTS YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT, AND YOU INTEND SUCH ACTION BY YOU TO AUTHENTICATE THIS DOCUMENT, WHICH SHALL HAVE THE SAME FORCE AND EFFECT AS A MANUAL SIGNATURE.
You make this representation and agreement when you order the System or Services from us at our website, over the phone, or through a retailer, and each time you activate or use a Service from Ooma.
Ooma may revise, amend, or modify this Agreement at any time and in any manner by posting such changes on our website. You should review this Agreement regularly for changes, and you can easily identify if changes have been made by checking the “last updated” date at the top of this page. Your continued use of the System and/or Services for a reasonable period of time following the posting of any changes to this Agreement means you accept such changes. This Agreement may not be amended or modified by you.
BINDING AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE RECEIVED A COPY OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT YOU MAY NOT RECEIVE A COPY OF THIS AGREEMENT SIGNED BY US, PRIOR TO OR AT THE TIME YOU ACKNOWLEDGE AND AGREE TO IT, AND SUCH LACK OF RECEIPT SHALL NOT, IN ANY WAY, INVALIDATE OR OTHERWISE AFFECT THIS AGREEMENT.
THIS AGREEMENT WILL NOT BE BINDING UPON OOMA UNTIL WE DELIVER THE SYSTEM TO YOU.
OUR LIMITED LIABILITY. WHERE PERMITTED BY LAW, WE DISCLAIM ANY IMPLIED WARRANTIES PROVIDED BY LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE. WE DO NOT WARRANT THAT THE SYSTEM WILL ALWAYS DETECT, OR HELP PREVENT, ANY BURGLARY, FIRE, HOLD-UP OR ANY OTHER EMERGENCY EVENT. WE DO NOT WARRANT THAT THE SYSTEM CANNOT BE DEFEATED OR COMPROMISED OR THAT IT WILL ALWAYS OPERATE OR FUNCTION. WE DO NOT WARRANT ANY WORK OR PRODUCTS PROVIDED BY YOU OR A THIRD PARTY USED IN CONNECTION WITH YOUR SYSTEM. SECTION 12 (LIMITATIONS OF LIABILITY AND INDEMNIFICATION) OF THIS AGREEMENT LIMITS OUR LIABILITY TO ONE THOUSAND, FIVE HUNDRED DOLLARS ($1,500) IF YOU OR ANYONE ELSE SUFFERS ANY HARM (DAMAGE OR LOSS OF PROPERTY, PERSONAL INJURY, OR DEATH) BECAUSE THE SYSTEM FAILED TO OPERATE PROPERLY, OR WE OR THE CENTRAL STATION MONITORING PROVIDER WERE CARELESS OR ACTED IMPROPERLY. YOU HAVE HAD THE OPPORTUNITY TO TALK TO OUR SALES REPRESENTATIVE ABOUT THIS LIMITATION, AND YOU KNOW THAT YOU MAY OBTAIN A HIGHER LIMITATION OF OUR LIABILITY BY PAYING AN ADDITIONAL PERIODIC FEE TO US. SECTIONS 12 AND 13 LIMIT OUR LIABILITY. PLEASE BE SURE TO READ AND UNDERSTAND THESE PROVISIONS. There are no warranties which extend beyond the description on the face hereof.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT PURCHASE OR USE OUR SYSTEM OR SERVICES.
2. Customer Representations
You hereby represent and warrant:
(a) Power and Authority: You are of legal age and mental sufficiency to enter into this Agreement. If Customer is an entity, you are authorized to enter into this Agreement on behalf of such entity.
(b) Accurate Information:Your name, contact information, service address and all other information related to your Ooma account are correct and up to date at all times.
(c) Unacceptable Use: You will not use the System and Services in an unacceptable, illegal, or prohibited manner that is in violation of our Acceptable Use Policy (see Section 6) and all other Ooma policies and procedures referenced herein.
(d) Financial Responsibility: You will pay for all charges for use of your System and Services, including the authorized and unauthorized use of your account.
(e) Purchase of System: You have purchased the System directly from Ooma or through an authorized dealer or reseller of Ooma.
(f) Ownership and Risk of Loss: You own the System and bear all risk of loss, theft, casualty or damage to the System, from the time that we ship it to you until the time (if applicable) that it is returned to us in accordance with this Agreement. If the System is damaged, lost, or stolen, you will no longer be able to use Services and will be required to purchase a new system.
(g) Restrictions and Limits Apply: You agree to the limits and restrictions on use of the System and Services, as set forth herein.
(h) High-Speed Internet Requirement: You will, at your sole expense, maintain a High-Speed Internet connection of sufficient speed for use with our Services. High-Speed Internet refers to an Internet connection capable of data speeds of at least 180 kilobits per second in both upstream and downstream directions.
3. End User License and Restrictions
(a) System License: With your purchase of the System, Ooma grants to you a limited, revocable, non-transferrable, non-sublicensable, non-resellable license and right to use the firmware or software embedded in the System, in object code form, strictly in accordance with this Agreement. Ooma does not grant any license to use the firmware or software in any other manner, and you expressly agree that the System is exclusively for use in connection with the Services offered by Ooma, as described in this Agreement.
(b) Software License: Upon activation of a Service, Ooma grants to you a limited, revocable, non-transferrable, non-sublicensable, non-resellable license and right to use our software and applications strictly in accordance with this Agreement. Ooma does not grant any license to use its software, applications or firmware in any other manner.
(c) No Modifications: You shall not modify, re-use, reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code or create derivative works from the binary code of the Ooma firmware, software or applications. You agree not to modify, intercept, capture, decode, simulate or redirect communication protocols used by Ooma for any purpose, or make use of the Services in a manner inconsistent with its intended purpose.
(d) No Tampering: You hereby covenant that you will not open the housing of the System or tamper with the components of the System in any manner, including changing physical or electronic identification information, removing labels (including trademarks, warning labels and copyrights) and/or any/all forms of reverse engineering.
(e) No Hacking: You hereby covenant that you will not compromise in any way the integrity or privacy of the communications of others.
(f) No Theft: You hereby covenant that you will not use the System or any Services in any manner to avoid Ooma’s charges or its policies.
(g) No Intellectual Property Rights: All intellectual property rights, including patents, copyrights, trademarks, service marks, trade secrets, or other intellectual property rights, remain Ooma’s sole and exclusive property. Nothing in this Agreement shall be construed as granting any of these rights to you.
(h) No Resell Rights: You shall not sell, rent, lease, distribute, or provide service to a third party using our System or Services.
(i) New Versions of Software: Ooma has no obligation to, but may at its sole discretion, provide fixes, updates or upgrades to its firmware, software or applications.
4. Marketing, Pricing and Promotions
(a) Usage Analysis: You agree that Ooma may store, analyze and use, on an aggregate basis, its customers’ (including your) product and feature usage, online activity and other information (i) to customize products or services that Ooma may market to you and others; and (ii) to comply with applicable laws, rules and regulations. You also agree that Ooma may publicly disclose such aggregate information about its customers.
(b) E-mail Marketing: You agree that Ooma may, from time to time, send you new product and feature announcements, marketing materials and promotional offers via e-mail. You may opt-out of such communication by notifying Ooma’s customer service in writing.
(c) Promotional Offers: Ooma may, from time to time, offer promotional pricing and free trials of services to its customers. Such offers may only be offered to new customers, and you may not be eligible for some or any of the offers. These offers are not guaranteed and can be modified, extended, altered, or cancelled by Ooma at any time without notice. Pricing of promotional offers for services is considered Ooma confidential information, and you shall not share or disclose the terms of the promotion with a third party without Ooma’s express written consent.
(d) Trial Expiration: If you are enrolled in a free trial of an Ooma Service, you will be notified via e-mail when the trial period is due to expire. If you fail to notify Ooma of your intention to cancel the use of these Services beyond the trial period, you will be deemed to have subscribed to such Services and will be charged any applicable associated fees for continued usage of such Services.
(e) Information Accuracy: Ooma attempts to describe its products, services, pricing and availability as accurately as possible, but does not warrant that all such information on its website, packaging, brochures, flyers, advertising, e-mail communications and other marketing materials is up to date and/or error-free.
5. Services, Term and Transmission Facilities
(a) Installation of the System: It is your responsibility to install and use the System and Services pursuant to the applicable manual and instructions, and in accordance with the terms of this Agreement. IF THE SYSTEM IS NOT PROPERLY INSTALLED, OR IF THE SYSTEM OR ANY OF ITS SENSORS ARE OUTSIDE THE DETECTION RANGE, OR HINDERED OR OBSTRUCTED BY WALLS, FURNITURE, PERSONAL PROPERTY OR OTHER OBJECTS, YOU MAY EXPERIENCE FALSE ALARMS OR DETECTION FAILURES. It is your responsibility to test the System once installed to be sure the System (and any related sensors, components and peripherals) are functioning and communicating as intended and designed, as well as regularly test and maintain the System after installation. If you have any questions regarding the installation, care and use of the System, please contact our customer care department by calling 1-888-711-6662 or via web chat from www.ooma.com.
(b) Description of Services: Services of this Agreement may change from time to time based on your System purchase(s) and service selections. All purchases of System or Services are covered by this Agreement. Possible services include any combination of the following services: central station monitoring, remote access and remote viewing, alarm signal verification or LTE cellular backup, which are described herein. OOMA DOES NOT PROVIDE PHYSICAL ALARM RESPONSE OR ANY OTHER ON-SITE SERVICES.
(c) Central Station Monitoring; Alarm Signal Verification: If you have subscribed to our central station monitoring service, Ooma will connect your System to the Central Station Monitoring Provider. You agree to provide the Central Station Monitoring Provider with a call list of names and telephone numbers of individuals you wish to receive notification of alarm signals (the “Call List”), through our mobile application(s) and keep such list up-to-date. When an alarm signal (such as a burglar alarm) from the System is received, the Central Station Monitoring Provider will first try to telephone the first person on your Call List, and if there is no answer, the Central Station Monitoring Provider will try to telephone the second available person on your Call List to verify whether or not an emergency condition requiring police response exists. If there is no answer to both of these calls or the person contacted indicates that an emergency exists, the Central Station Monitoring Provider will attempt to notify the police department. If the System contains video or listening devices permitting the Central Station Monitoring Provider to monitor video or sound, upon receipt of an alarm signal, the Central Station Monitoring Provider will attempt to monitor video or sound for so long as the Central Station Monitoring Provider, in its sole discretion, deems it appropriate to confirm an alarm condition. The Central Station Monitoring Provider will also attempt to contact someone on the Call List to advise such person that the police have been notified. When a fire alarm, hold-up alarm or duress alarm signal is received, the Central Station Monitoring Provider will attempt to notify the police, fire department or other emergency personnel and the first available person on the Call List. When a carbon monoxide (“CO”) alarm is received, Central Station Monitoring Provider will attempt to notify the fire department. The Central Station Monitoring Provider will also attempt to contact the premises and the first available person on your Call List. If someone in the premises responds to our call, the Central Station Monitoring Provider will recommend that everyone vacate the premises, and you will call your local gas company to investigate the cause of the CO signal. We recommend the installation of a Knox Box which gives the fire department a key to enter your premises. When a non-emergency signal is received (e.g. temperature or flood sensors), the Central Station Monitoring Provider will attempt to contact the premises or the first available person on your Call List, but will not notify emergency authorities.
If you do not choose central station monitoring service, your System will not be connected to the Central Station Monitoring Provider, and we or the Central Station Monitoring Provider will not provide any monitoring or response services to you. Any alarm signal from the System will be sent to your mobile phone via a mobile application, and in the form of a push notification or a text message (“Alert”). YOU WILL BE SOLELY RESPONSIBLE FOR RESPONDING TO THE ALERTS AND DETERMINING WHAT ACTION TO TAKE, INCLUDING CONTACTING THE APPROPRIATE LAW ENFORCEMENT AND/OR EMERGENCY PERSONNEL.
(d) Remote Access and Remote Viewing; Excessive Data Usage: If remote access and remote viewing is selected, the System is designed to transmit data via the Internet to remote equipment supplied by Ooma. We will grant access to the server which permits you to monitor the System, access the System to arm, disarm and bypass zones on the System, view the remote video camera(s) and control other remote automation devices that may be installed. The remote services server is provided by a third party. You shall install the camera(s) in permissible legal locations in your premises to permit your viewing. You agree that you will not use the camera(s) to record or monitor sounds or images in locations where there might otherwise be a reasonable expectation of privacy, and that you will not view, capture, store, or provide access to any sound or images to a third party in a manner that violates the personal privacy of another individual or any applicable state or federal law or regulation. Electronic data may not be encrypted, and wireless components of the System may not meet Advanced Encryption Standard specifications for encryption of electronic data established by the U.S. National Institute of Standards and Technology. Ooma shall have no responsibility or liability for data transmission failure, corruption or unauthorized access. Ooma will have no liability for any third party claims for invasion of privacy arising from your installation of the camera(s) and viewing, capturing, storing, transmitting or other use of the camera data, and you shall indemnify Ooma against any such claims. Ooma shall have no liability for excessive data usage expense incurred by you attributable to the System or Services provided herein.
(e) LTE Cellular Backup: If LTE cellular backup is selected and if you have purchased our device for enabling this service, the device will provide an LTE wireless network for your System to connect to the Internet in case you lose your Internet connection. You may use the LTE wireless network for as long as it is needed until your Internet connection is restored.
(f) Term: THE TERM OF EACH SERVICE WILL BEGIN ON THE DATE IT IS ACTIVATED AND WILL RENEW MONTH-TO-MONTH UNLESS TERMINATED BY YOU OR US, AS MORE FULLY SET FORTH IN SECTION 10. NOTWITHSTANDING THE PRECEDING SENTENCE, IN SOME CASES, THE DESCRIPTION OF THE SERVICES OR THE PRICING FOR THE SERVICES MAY PROVIDE FOR, OR REQUIRE A MINIMUM INITIAL TERM WHICH WILL NOT BE LONGER THAN ONE YEAR. THE MINIMUM INITIAL TERM MAY BE DESCRIBED ON OUR WEB SITE, OR WHERE YOU PURCHASE THE SYSTEM, OR WHEN YOU ACTIVATE THE SERVICE(S). THE PROVISION FOR ANY SUCH MINIMUM INITIAL TERM IS INCORPORATED INTO THIS AGREEMENT.
(g) Communications Facilities and Limitations: You acknowledge that unless you select the LTE cellular backup service, signals are only transmitted over your Internet connection. In such case, you are solely responsible for supplying High-Speed Internet access at your premises, and Ooma is not responsible for your access to the Internet, or any interruption of service or down time of remote access caused by loss of Internet service or any other mode of communication used by you to access the System. You acknowledge that the use of cellular or Internet connectivity may be controlled by local or state agencies and/or the Federal Communications Commission, and changes in rules, regulations and policies may necessitate our discontinuing such transmission facilities or upgrading your System, in which event you agree to pay our standard rates and charges for the substitution of such facilities or the upgrade of your System. Internet or cellular transmissions may be impaired by atmospheric conditions, including electrical storms, power failures or other conditions and events beyond our control, and we make no representations or warranties as to how fast a signal will be received by the Central Station Monitoring Provider, because signal transmission speed may be adversely affected by Internet traffic or other causes beyond our control. You further acknowledge that signals are transmitted over communications facilities provided by independent carriers or providers, and are maintained and serviced solely by the applicable carrier or provider, which carriers or providers are independent of us and are beyond our control. You acknowledge that the System can be compromised if the passwords, pin codes, or devices used for access are lost or accessed by others, and Ooma will have no liability for such third party’s unauthorized access. We make no representations or warranties as to the security or privacy of any wireless network system or router. Wireless systems can be accessed by others, and it is your responsibility to secure access to the System with passwords, pin codes, lock out codes and similar means or methods.
6. Acceptable Use Policy
(a) General Acceptable Use Policy: You shall not use the System or Services in a manner that is illegal, fraudulent, improper, abusive or in any way that prevents or interferes with Ooma’s ability to provide Services to its customers. You acknowledge that Ooma may, at its sole discretion, suspend or terminate service to your System and charge you applicable usage and service fees for the time periods that your use of the System was inconsistent with our acceptable usage policy.
(c) Testing of the System: You agree that the System, once delivered to you, is in your exclusive possession and control, and it is your sole responsibility to test the operation of the System and, if you have selected the central station monitoring service, to test the System’s connection to the Central Station Monitoring Provider on a periodic basis.
(d) False Alarms; Permit Fees: THE CITY OR COUNTY IN WHICH YOUR PREMISES IS LOCATED MAY REQUIRE THAT YOU OBTAIN A PERMIT FOR THE USE AND MONITORING OF AN ALARM SYSTEM. LOCAL AUTHORITIES MAY NOT RESPOND TO ALARM NOTIFICATIONS UNTIL ALL PERMITS OR LICENSES FOR USE OF THE SYSTEM HAVE BEEN OBTAINED, AND THEREFORE THE CENTRAL STATION MONITORING PROVIDER MAY NOT BEGIN MONITORING UNTIL YOU HAVE OBTAINED AT YOUR OWN EXPENSE ALL THE NECESSARY PERMITS OR LICENSES, AND PROVIDED US AND THE CENTRAL STATION MONITORING PROVIDER WITH THE RELEVANT LICENSE OR PERMIT NUMBER. You are responsible for all the required alarm permits and licenses and related fees, agree to timely file for and maintain any permits or licenses required by applicable law and indemnify and reimburse us and the Central Station Monitoring Provider for any fines, penalties or other fees relating to permits or licenses (or lack thereof), registration charges, or false alarms. We may cancel the Services and/or disconnect the System immediately in response to your failure to comply with this Section 6(d), including any non-payment of fines or penalties. We or the Central Station Monitoring Provider shall have no responsibility or liability for permit or license fees, false alarms, false alarm fines, police or fire response, any damage to personal or real property, or personal injury caused by police or fire department response to any alarm, whether false alarm or otherwise, or the refusal of the police or fire department to respond.
7. Additional Terms of System and Service
(a) Reliability of Services: You acknowledge that the Services, including central station monitoring, remote access and mobile notifications, are not error-free, 100% reliable or 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your Wi-Fi network, enabled wireless device and/or broadband Internet access, or optional cellular backup service, for which neither Ooma, the Central Station Monitoring Provider nor any wireless or data carrier is responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and/or priority access by emergency responders in the event of a disaster or emergency (collectively, “Service Interruptions”). You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruptions. We cannot and do not guarantee that you will receive notifications, or the Central Station Monitoring Provider will receive or respond to an alarm signal within any given time, or at all. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR OOMA EQUIPMENT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. If you have not selected the central station monitoring service, no professional response service will be provided, and you acknowledge that it is your sole responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
(b) Service Interruptions; No Refund or Rebate: The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Ooma does not offer any specific uptime guarantee for the Services.
(c) Check Batteries Regularly: It is your responsibility to replace any batteries for the System, when necessary. YOU UNDERSTAND AND AGREE THAT THE SYSTEM MAY NOT FUNCTION OR PROPERLY FUNCTION IF BATTERIES NEED REPLACEMENT; PLEASE CHECK THEM REGULARLY AND REPLACE BATTERIES WHEN NOTIFIED BY THE OOMA HOME SECURITY APPLICATION.
(d) Smoke and Carbon Monoxide Detectors: OOMA MAKES NO WARRANTY OR REPRESENTATION THAT ANY SMOKE DETECTORS OR CARBON MONOXIDE DETECTORS, WHETHER USED WITH OR WITHOUT ANY OOMA EQUIPMENT OR MOBILE APPLICATION MANUFACTURED OR SOLD BY OOMA, CONSTITUTE A FIRE ALARM SYSTEM OR MEET THE REQUIREMENTS OF ANY STATE OR LOCAL LAW, CODE, ORDINANCE, AUTHORITY HAVING JURISDICTION OR INDUSTRY STANDARD, SUCH AS NFPA 72. YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH THE REQUIREMENTS OF ANY APPLICABLE STATE OR LOCAL LAW, CODE, ORDINANCE, AUTHORITY HAVING JURISDICTION OR INDUSTRY STANDARD THAT MAY APPLY TO THE INSTALLATION, USE AND/OR SERVICE OF ANY SMOKE DETECTORS OR CARBON MONOXIDE DETECTORS, WHETHER USED WITH OR WITHOUT ANY OOMA EQUIPMENT OR MOBILE APPLICATION MANUFACTURED OR SOLD BY OOMA. CARBON MONOXIDE DETECTORS AND SMOKE DETECTORS SHOULD BE PERIODICALLY REPLACED IN ACCORDANCE WITH APPLICABLE FIRE CODE STANDARDS OR THE MANUFACTURER’S RECOMMENDATION (TYPICALLY SIX (6) TO TEN (10) YEARS). YOU ARE SOLELY RESPONSIBLE FOR TIMELY REPLACING EACH SUCH DETECTOR.
(e) Smart Device Standards/Use Only Ooma-Certified Third Party Products or Services: The System may use various open or commonly available standards or means to communicate and work with smart or connected devices that are also similarly used by other systems or services not manufactured by Ooma, including Wi-Fi, Bluetooth, and IP devices. HOWEVER, SMART, CONNECTED OR OTHER DEVICES AND RELATED SERVICES (“THIRD PARTY PRODUCTS AND SERVICES”) THAT ARE NOT DESIGNATED BY OOMA AS COMPATIBLE WITH ITS PRODUCTS AND SERVICES MAY NOT WORK WITH THE SYSTEM AND SERVICES, OR MAY HAVE LIMITED FEATURES OR FUNCTIONALITY, EVEN IF DESIGNED, SPECIFIED OR MARKETED TO OPERATE USING THE SAME OR SIMILAR STANDARDS OR MEANS OF COMMUNICATION. YOU AGREE ONLY TO USE THIRD PARTY PRODUCTS AND SERVICES DESIGNATED BY OOMA AS COMPATIBLE WITH ITS SYSTEM AND SERVICES. FURTHER, YOU AGREE THAT OOMA IS NOT RESPONSIBLE FOR, AND YOU HEREBY RELEASE AND HOLD OOMA HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND DAMAGES, INJURIES OR LOSS OF LIFE ARISING FROM, RELATED TO, OR CAUSED BY, ANY ATTEMPT BY YOU TO CONNECT, OR YOUR CONNECTION AND USE OF, THIRD PARTY PRODUCTS OR SERVICES THAT ARE NOT CERTIFIED BY OOMA AS COMPATIBLE WITH ITS SYSTEM AND SERVICES.
8. Service Charges, Billing and Payment
(a) Service Charges, Taxes and Fees: We may charge you certain Service fees and other applicable taxes and fees, which may include but are not limited to fees for System purchases; federal, state, and/or local taxes; reconnection fees; shipping and handling charges; and as otherwise set forth herein. The amount of certain of these fees and charges is published on our website at http://www. ooma.com/rates and is incorporated by reference herein, and may change from time to time. Failure to pay any Service fees, other taxes or fees may result in suspension or termination of your account without notice. Each time you purchase any System or Services, the fees for such purchase will be listed on your invoice or receipt. THE TOTAL SUM OF SERVICES FEES SHOWN THEREIN IS THE TOTAL PRICE YOU WILL PAY US FOR THE LISTED SERVICES DURING THE TERM INDICATED ON THE INVOICE OR RECEIPT. THERE IS NO FINANCING CHARGE OR COST OF CREDIT (0% APR) ASSOCIATED WITH THIS AGREEMENT. OOMA SHALL BE PERMITTED, FROM TIME TO TIME, TO INCREASE THE SERVICES FEES BY AN AMOUNT WHICH SHALL NOT EXCEED AN AMOUNT PERMITTED BY LAW, EACH CALENDAR YEAR, AND YOU AGREE TO PAY SUCH INCREASE AS INVOICED.
(b) Valid Credit or Debit Card Required: In order to purchase a System or activate Services from us, you are required to provide us with a valid e-mail address, and a credit or debit card number from a card issuer that we accept (“Issuer”), together with the billing address for the card. We reserve the right to stop accepting credit or debit cards from one or more Issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is cancelled and replaced on account of loss or theft, you must advise us immediately and provide new credit or debit card information, or we may terminate your Services. You acknowledge and agree that you authorize us and that we do not need to obtain any additional authorization from you for any recurring payments, automatic billing options or updated credit card or debit card information provided by your credit card or debit card company to us. Your account will be automatically terminated if you put a stop payment on your account with a financial institution in connection with payment of any of your monthly or annual charges.
(c) Payments: We accept payment only by credit or debit card. Your purchase of the System or activation of Services from us authorizes us to charge your credit or debit card. This authorization will remain valid until thirty (30) days after we receive written notice of your intent to terminate our authority to charge your credit or debit card. If you provide such notice, we will charge your credit or debit card for any applicable termination fee and any other outstanding charges and terminate your Services.
(i) Collection: If your Services are terminated, you will remain fully liable to us for all charges pursuant to this Agreement, and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorneys’ fees.
(ii) Notices: You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive advance notice of ten (10) days from us regarding the amount that we will debit from your account. While we may send you messages about your billing, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
(iii) Late and Partial Payments: We may add late payment charges to any past due amounts at the lower of 1.5% per month of the past due amounts, or the maximum rate allowed by law. Our acceptance of late or partial payments (even if marked “paid in full” or with other restrictions) shall not waive any of our rights to collect the full amount of the charges. If charges cannot be processed through your credit or debit card, we may add a processing fee of $15, or any lesser amount if limited by state law.
(d) Automatic Billing: Certain of our Services, including but not limited to central station monitoring, alarm signal verification, remote access and remote viewing, and LTE cellular backup, feature automatic rebilling. In such circumstances, for your convenience, your credit card will be automatically billed at the end of each term which will renew the Service(s) for another like term. You may terminate automatic rebilling at any time by notifying us at least thirty (30) days before rebilling is to take place that you are terminating the Services. Failure on your part to notify us of your wish not to be re-billed will result in your account being re-billed, and you agree to hold harmless and indemnify us from any and all claims of wrongful billing. Please also see the State Specific Provisions in Section 18 below.
You may learn details about the automatic renewal process and cancellation by contacting us at 525 Almanor Avenue, Suite 200, Sunnyvale, California 94085 or at 1-877-950-6662.
(e) No Service Credit: You acknowledge that Services are provided on a commercially reasonable efforts basis using the public network and third party networks. Therefore, Ooma will not provide any credits, refunds or other compensation for interruptions of Service or failure of the System.
(f) Billing Disputes: If you dispute any charges from us, you must notify us in writing within thirty (30) days after notification to you of the charges (or within any greater period required by law); otherwise, you will be deemed to have waived any right to contest such charges. During the period of a billing dispute, our receipt and acceptance of a partial payment shall not be construed as a payment in full of the contested amount, as set forth below. All notices of disputed charges must be sent to: Ooma, Inc., c/o Billing Department, 525 Almanor Ave., Suite 200, Sunnyvale, CA 94085, or via e-mail at email@example.com.
9. Return of System and Refunds
(a) Purchases Directly from Ooma: If you bought your System directly from Ooma, you may return the System to us within thirty (30) days of the date you received the System (or as otherwise required by law for a longer return period), and we will refund the purchase price to you, provided that you:
(i) Return all of the equipment comprising the System that you purchased from us within fourteen (14) days of termination of your account, in original condition, original packaging preferred;
(ii) Terminate your account with us within the same thirty (30)-day period;
(iii) Return original proof of purchase with the System, together with all parts, and accessories;
(iv) Obtain a valid return authorization number from our customer care department prior to returning the System to us by calling 888-711-6662; and
(v) Pay all costs of shipping the System back to us.
You may return your System for a refund only once. We reserve the right to charge a restocking fee as may be posted on our website from time to time.
(b) Retail Customers: If you bought your System from a retail store, dealer, or other provider (“Retailer”), rather than directly from Ooma, you may not return the System to us. If permitted by the Retailer, you may return the System to the Retailer, in which case the return will be subject to the Retailer’s return policy. If you return your System to the Retailer, your Services will terminate.
(c) No Refunds on Unused Services: Subject to applicable law and unless otherwise expressly provided in this Agreement, there are no refunds for unused Service terms, and all Service charges, taxes, fees and prepaid balances are non-refundable.
10. Termination of Services
(a) By You: You may terminate any or all Services by sending a written notice to our Customer Care Department through your account on the website at least thirty (30) days prior to the expiration of the current term. There are no refunds for unused service terms.
(b) By Us: We may terminate any or all of your Services or use of your System at any time if any charge by us to your credit or debit card is declined or reversed, if your credit or debit card expires or is cancelled and you have not provided us with a valid replacement credit or debit card, or if you otherwise fail to pay any charges, taxes, or fees. Any attempt to use, or use of a stolen credit or debit card will result in termination of all of your Services and use of your System. We may terminate your use of the System or of any or all Services if you fail to pay undisputed charges after they are due, or within five (5) business days after we have notified you that, in our sole but reasonable discretion, such disputed charges are valid and must be paid. We may terminate or modify your use of the System or of any or all Services immediately if we determine, in our sole and absolute discretion, that you violated any of your obligations in this Agreement, including a violation of the license granted in Section 3. We may terminate any element of the Services provided to you for any other reason or no reason, by providing notice to you of at least ten (10) business days.
(c) Reactivation: If you wish to reactivate a terminated account, and we agree at our sole discretion to reactivate the account, you will be required to pay the reactivation fee as set forth on our website at http://www.ooma.com/rates/.
(a) Limited System Warranty: We provide a limited warranty on the System as to manufacturing defects for a period of one (1) year from the date of purchase (the “Limited Warranty”). This Limited Warranty does not apply to any defect or failure other than a manufacturing defect and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, damage by a Retailer, damage from dropping, abuse, water damage, electrical or lightning, or from other types of customer handling. Your sole remedy for any breach of this limited warranty is to obtain a repaired or replacement System or component of the System. You must include with the returned System or component a letter stating that you are returning the System for warranty repair or replacement and state the nature of the defect. This Limited Warranty does NOT cover cost of shipment. You must be registered with Ooma as the primary account holder of record to exercise rights under this Section 11(a).
(b) Option to extend Limited System Warranty: During the first year of coverage, you have the option to extend the Limited Warranty for additional periods for a one-time charge, as more fully described on our website and incorporated by reference herein. Separate terms and conditions apply to that extended limited warranty.
(c) Requests for Replacement System: To request replacement System under the terms of this Section 11(c), you must call Ooma Customer Support at 1-888-711-6662. You must provide a valid credit card (American Express, Discover, MasterCard, or Visa). Ooma will ship a replacement System and a shipping label to return the damaged or broken equipment. You are required to return the damaged or broken System within fourteen (14) days of receipt of the replacement System or the credit card on file will be charged. If Ooma determines, in its sole discretion, that the damaged or broken System is not covered under the terms of this Section 11(c), you will have fourteen (14) days to return the replacement System, or the credit card on file will be charged for the full retail price of the replacement System, plus any associated taxes, shipping and handling fees.
(d) No Other Warranties: OTHER THAN THE LIMITED SYSTEM WARRANTY EXPRESSLY SET FORTH ABOVE, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ON THE SYSTEM, USE OF THE SYSTEM, OR ON ANY SERVICES. THIS DISCLAIMER OF WARRANTIES INCLUDES BUT IS NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SYSTEM OR ANY SERVICES WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA, OR INFORMATION, OR THAT THE FIRMWARE OR SOFTWARE IS ERROR FREE. ANY STATEMENTS AND DESCRIPTIONS CONCERNING THE SYSTEM OR SERVICES BY OOMA OR ITS AGENTS OR REPRESENTATIVES ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
(e) State Requirements: SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
(f) No Warranties Against Occurrences: YOU UNDERSTAND AND AGREE THAT THE EQUIPMENT COMPRISING THE SYSTEM AND SERVICES ARE NOTIFICATION, SIGNALING AND DETECTION EQUIPMENT AND SERVICES. THE SYSTEM AND SERVICES DO NOT ELIMINATE OCCURRENCES OF EVENTS, SUCH AS FIRES, FLOODS, BURGLARIES, ROBBERIES, AND/OR MEDICAL ISSUES. FURTHER, YOU UNDERSTAND AND AGREE THAT THE SYSTEM AND SERVICES MAY NOT AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES, AND, THEREFORE, OOMA MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) THAT THE SYSTEM AND SERVICES WILL AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES.
12. Limitations of Liability and Indemnification
(a) Direct Damages: YOU UNDERSTAND AND AGREE THAT OOMA IS NOT RESPONSIBLE, AND DISCLAIMS ALL LIABILITY FOR, RELATED TO, OR ARISING OUT OF, YOUR FAILURE TO (I) REGISTER THE SYSTEM, (II) ENTER IN THE CORRECT INFORMATION WHILE PROGRAMMING THE SYSTEM ONLINE, (III) TEST THE FUNCTION AND RANGE OF THE SYSTEM AND THE SERVICES, OR (IV) CHARGE THE SYSTEM, IF APPLICABLE. OOMA’S LIABILITY TO YOU ON ACCOUNT OF ANY ACT OR OMISSION OF OOMA RELATED TO THIS AGREEMENT, INCLUDING ACTS OR OMISSIONS RELATED TO THE SERVICES, SHALL BE LIMITED IN AMOUNT TO THE TOTAL OF OOMA’S CHARGES COLLECTED FROM YOU DURING THE ONE (1) MONTH PERIOD PRECEDING THE ACT OR OMISSION, AND SHALL BE FURTHER LIMITED TO RECOVERY OF ACTUAL DAMAGES TO REAL OR TANGIBLE PERSONAL PROPERTY OR BODILY INJURY OR DEATH, PROXIMATELY CAUSED BY OOMA’S INTENTIONAL MISCONDUCT OR RECKLESSNESS. OOMA SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES RESULTING FROM FORCE MAJEURE EVENTS SUCH AS (BUT NOT LIMITED TO), ACTS OF NATURE, STRIKES, WAR, INVASION, INSURRECTION, HOSTILITIES (WHETHER OR NOT WAR IS DECLARED); RIOT OR OTHER CIVIL UNREST ACTS OR THREATS OF TERRORISM; FLOOD, FIRE, EARTHQUAKE, NATURAL DISASTER OR EXPLOSION; PANDEMIC, EPIDEMIC, QUARANTINE RESTRICTION OR STATE(S) OF EMERGENCY; ANY ORDER, LAW, REGULATION OR RESTRICTION OF ANY GOVERNMENTAL OR REGULATORY BODY (INCLUDING, BUT NOT LIMITED TO, THE DENIAL OR CANCELLATION OF ANY NECESSARY LICENSE OR PERMIT; ACTIONS, EMBARGOES OR BLOCKADES IN EFFECT ON OR AFTER THE DATE OF THIS AGREEMENT; ACTION(S) BY ANY APPLICABLE GOVERNMENTAL AUTHORITY; LOSS OF POWER TO YOU; INSTALLATION WORK PERFORMED BY YOU OR BY THIRD PARTIES, OR ANY ACT OR OMISSION BY YOU OR ANY PERSON USING THE SYSTEM OR SERVICES PROVIDED TO YOU; SYSTEM, NETWORK OR FACILITY FAILURE, SHORTAGE, UPGRADE, RELOCATION OR MODIFICATION; ANY ACT OR OMISSION OF ANY UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR, OR OTHER THIRD PARTY, INCLUDING BLOCKING OF PORTS BY YOUR ISP OR HIGH-SPEED INTERNET SERVICE PROVIDER OR OTHER IMPEDIMENT TO USAGE OF THE SYSTEM OR SERVICES CAUSED BY ANY THIRD PARTY; OR ANY OTHER CAUSE THAT IS BEYOND OUR REASONABLE CONTROL.
(b) Indirect, Consequential Damages: OOMA, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, ASSIGNS, AND/OR ANY OTHER SERVICE PROVIDER, INCLUDING THE THIRD PARTY MONITORING SERVICE, WHO FURNISHES SERVICES TO YOU OR US IN CONNECTION WITH OOMA’S SERVICES, SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY DAMAGES ARISING FROM OR IN CONNECTION WITH PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, OR THE USE OR INABILITY TO USE THE SERVICES OR ANY OF THE SYSTEM, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL, OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES, INCLUDING CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND WILL APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
(c) OOMA IS NOT AN INSURER; LIMITATION OF LIABILITY: YOU UNDERSTAND AND AGREE THAT: (I) OOMA AND/OR THE CENTRAL STATION MONITORING PROVIDER IS NOT AN INSURER OF YOUR PREMISES, PROPERTY OR THE PERSONAL SAFETY OF PERSONS ON YOUR PREMISES; (II) YOU ARE SOLELY RESPONSIBLE TO PROVIDE ANY INSURANCE ON YOUR PREMISES AND ITS CONTENTS; (III) THE AMOUNT YOU PAY TO OOMA IS BASED ONLY ON THE VALUE OF THE SYSTEM AND SERVICES OOMA PROVIDES, AND NOT ON THE VALUE OF YOUR PREMISES OR ITS CONTENTS; (IV) ALARM SYSTEMS AND THE CENTRAL STATION MONITORING SERVICE MAY NOT ALWAYS OPERATE PROPERLY OR AT ALL FOR VARIOUS REASONS; (V) IT IS DIFFICULT TO DETERMINE IN ADVANCE, THE VALUE OF THE PROPERTY THAT MIGHT BE LOST, STOLEN OR DESTROYED, OR THE DAMAGES INCURRED RESULTING FROM OR CAUSED BY PERSONAL INJURY OR DEATH TO YOU OR ANY OTHER PERSON IF THE SYSTEM OR OUR SERVICES FAIL TO OPERATE PROPERLY OR AT ALL; (VI) IT IS DIFFICULT TO DETERMINE IN ADVANCE HOW FAST THE POLICE OR FIRE DEPARTMENT OR OTHER EMERGENCY PERSONNEL WOULD RESPOND TO AN ALARM SIGNAL; AND (VII) IT IS DIFFICULT TO DETERMINE IN ADVANCE WHAT PORTION, IF ANY, OF THE PROPERTY LOSS, PERSONAL INJURY OR DEATH WOULD BE PROXIMATELY CAUSED BY OUR FAILURE TO PERFORM, OUR NEGLIGENCE, OR A FAILURE OF THE SYSTEM OR THE SERVICES PROVIDED HEREIN OR THAT OF THE CENTRAL STATION MONITORING PROVIDER. THEREFORE, YOU AGREE: EVEN IF A COURT DECIDED THAT OOMA’S BREACH OF THIS AGREEMENT, A FAILURE OF THE SYSTEM, OUR NEGLIGENCE, OUR ACTION OR INACTION, OR A FAILURE OF THE MONITORING OR REPAIR SERVICE CAUSED, CONTRIBUTED TO OR ALLOWED ANY HARM OR DAMAGE (WHETHER PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) TO YOU OR ANYONE IN YOUR PREMISES, YOU AGREE THAT OUR LIABILITY SHALL BE LIMITED TO ONE THOUSAND, FIVE HUNDRED DOLLARS ($1,500), AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AND THIS SHALL BE YOUR ONLY REMEDY REGARDLESS OF WHAT LEGAL THEORY IS USED TO DETERMINE THAT OOMA WAS LIABLE FOR THE INJURY OR LOSS.
YOU MAY OBTAIN FROM OOMA A HIGHER LIMITATION OF LIABILITY IN LIEU OF THE LIQUIDATED DAMAGES SET FORTH ABOVE FOR AN ADDITIONAL CHARGE. IF YOU WISH TO ELECT THIS OPTION PLEASE CONTACT OUR CUSTOMER SERVICE DEPARTMENT AND A RIDER WILL BE ADDED TO THIS AGREEMENT THAT WILL SET FORTH THE AMOUNT OF THE HIGHER LIMITATION OF LIABILITY AND THE AMOUNT OF THE ADDITIONAL CHARGE. AGREEING TO THE HIGHER LIMITATION OF LIABILITY DOES NOT MEAN THAT OOMA IS AN INSURER.
(d) INDEMNIFICATION; WAIVER OF SUBROGATION RIGHTS: YOU SHALL INDEMNIFY AND HOLD HARMLESS OOMA, THE CENTRAL STATION MONITORING PROVIDER AND EACH OF THEIR SHAREHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, ASSIGNEES AND SUB-CONTRACTORS, FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, JUDGMENTS, LOSSES, DAMAGES (DIRECT, INDIRECT AND/OR CONSEQUENTIAL), FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES) BY OR ON YOUR BEHALF OR ANY THIRD PARTY RELATING TO (I) THE USE OF YOUR SYSTEM AND SERVICES, (II) ANY VIOLATION OF YOUR OBLIGATIONS UNDER THIS AGREEMENT, (III) THE VIOLATION OF APPLICABLE LAWS, REGULATIONS OR THE TERMS OF THIS AGREEMENT, (IV) THE TRANSMISSION OF ANY MESSAGES, CONTENT, IMAGES OR OTHER INFORMATION, (V) ANY CLAIMS FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING FROM OR IN CONNECTION WITH USE OF THE SYSTEM AND SERVICES, OR (VI) ANY HARM TO ANY PERSON RESULTING IN THE PERSONAL INJURY OR DEATH OR IN DAMAGE TO OR LOSS OF ANY TANGIBLE OR INTANGIBLE PROPERTY (INCLUDING DATA), INCLUDING THOSE ASSERTED AGAINST AND ALLEGED TO BE CAUSED BY OOMA OR THE CENTRAL STATION MONITORING PROVIDER’S NEGLIGENT PERFORMANCE, FAILURE TO PERFORM ANY OBLIGATION, OR THE FAILURE OF THE SYSTEM OR THE SERVICES PROVIDED HEREIN IN ANY RESPECT. YOU HEREBY WAIVE, AND SHALL CAUSE ANY INSURANCE CARRIER TO WAIVE ANY AND ALL RIGHTS OF RECOVERY (INCLUDING ANY RIGHT OF SUBROGATION) THAT YOU OR YOUR INSURANCE CARRIER MAY OTHERWISE HAVE AGAINST OOMA, THE CENTRAL STATION MONITORING PROVIDER OR OOMA’S AGENTS OR OTHER SUB-CONTRACTORS ARISING OUT OF THIS AGREEMENT OR THE RELATION OF THE PARTIES HERETO.
READ THIS SECTION 13 CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER THAT YOU CAN SEEK RELIEF FROM OOMA. In the event that Ooma is not able to resolve a dispute it has with you, any member of your household or any other authorized user of your System or Services arising out of or relating to use of the System or Services after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any Ooma claims for injunctive or other equitable relief) arising out of or in connection with, or relating to this Agreement, or the breach or alleged breach thereof or the use of the System or Services (collectively, “Claims”), by binding arbitration by the Judicial Arbitration and Mediation Services (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in Santa Clara County, California, unless you and Ooma agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 13 shall be deemed as preventing Ooma from seeking injunctive or other equitable relief from the courts as necessary to protect any of Ooma’s proprietary interests. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE AT OUR SOLE DISCRETION, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND OOMA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
14. U.S. Export Controls
You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security (the “U.S. Export Controls”). Without limiting the generality of the foregoing, you expressly agree that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the System or Services or any direct product or technical data thereof to any destination, company, or person restricted or prohibited by U.S. Export Controls. You further represent and warrant that you (or if acting on behalf of a business, the business and its officers, directors and shareholders) are not listed on any Specially Designated Nationals or other denied parties list issued by any agency of the U.S. Government.
15. TCPA Consent and Privacy
Notwithstanding any current or prior election to opt-in or opt-out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to your Services, at any telephone number, or physical or electronic address you provide, or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using an auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, a message may be left on your answering machine or voice mail, or sent via text.
You consent to receive SMS messages (including text messages), calls and messages (including pre-recorded and artificial voice and autodialed) from us, our agents, representatives, affiliates, or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your Services. You certify, warrant and represent that the telephone number(s) you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each telephone number you have provided to us. You agree to promptly alert us (no later than two (2) business days in any event) whenever you stop using a particular telephone number, and agree to indemnify and hold harmless Ooma against all claims, suits, actions, judgments, losses, damages (direct, indirect and consequential), fines, penalties, costs and expenses (including, without limitation, attorney’s fees) for or arising out of your failure to notify us.
Your cellular or mobile telephone provider will charge you according to the type of plan you carry. You also agree that we may contact you by e-mail, using any e-mail address you have provided to us or that you provide to us in the future. You agree that if you change e-mail addresses, you will promptly notify us of any new or replacement e-mail address.
You consent to our listening to and/or recording phone calls between you and our representatives without notice to you as permitted by applicable law. For example, we listen to and record calls for training and quality monitoring purposes.
(a) Survival: The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
(b) No Third Party Beneficiaries: No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action, or creates any other third party beneficiary rights. Notwithstanding the foregoing, Ooma, any Central Station Monitoring Provider and their representatives, affiliates and subsidiaries, and any of their trustees, members, directors, officers, shareholders, members, employees, representatives, consultants, attorneys, agents, assignees, suppliers, distributors, sub-contractors, licensees or licensors are intended to be and are considered third party beneficiaries of this agreement.
(c) Governing Law: This Agreement and the relationship between you and us are governed by the laws of the State of California, without regard to its conflict of law provisions. To the extent court action becomes necessary to enforce an arbitration award or for any other reason consistent with Section 13 above, such action shall only be brought in a federal or state court of competent jurisdiction located in Santa Clara County, California, or the related appellate courts and you shall hereby submit to the personal and exclusive jurisdiction of the federal and state courts located in Santa Clara Country, California, and waive any objection as to venue or inconvenient forum.
(d) Copyrights, Service Marks, and Trademarks: The System and each of our Services, and any firmware or software used to provide the Services or provided to you in conjunction with our Services, or embedded in the System, and all Services, information, documents, and materials on our website are protected by trademark, copyright, or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “Marks”) are, and will at all times, remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our Marks.
(f) Severability: If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other provision of this Agreement.
(g) No Waiver Rights: Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
(h) Assignment: We may assign this Agreement and any of its right or obligations hereunder at any time. You may not assign your rights or delegate any of your duties under this Agreement, and any attempted assignment or delegation without our consent will be void. This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
(i) Performance of Work: We may sub-contract any work, obligations or other performance required of Ooma under this Agreement without your consent.
(j) No Agency: Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship.
(k) Notice: Except as stated otherwise in this Agreement, when a notice is required from us to you, we may provide that notice by e-mail to the e-mail address provided by you when you established your account with us or as otherwise updated. You are responsible for keeping that e-mail address up to date. When you are required to give us notice, you must do so, except as stated otherwise in this Agreement, by using the notice facility on your account page provided on our web- site, or by calling our customer support team.
(l) No party, nor any of the parties’ respective attorneys, shall be deemed the drafter of this agreement for purposes of interpreting any provision hereof in any judicial or other proceeding that may arise between the parties.
ALARM COMPANY OPERATORS ARE LICENSED AND REGULATED BY THE BUREAU OF SECURITY AND INVESTIGATIVE SERVICES, DEPARTMENT OF CONSUMER AFFAIRS, SACRAMENTO, CA 95814. OUR CALIFORNIA ALARM LICENSE NUMBER IS ‘ACO7196′. OUR LICENSES IN OTHER STATES INCLUDE: ‘ARIZONA ROC 327025′; ‘TEXAS B10504601′.
State Specific Provisions
[Alabama] Complaints against us may be directed to the Alabama Electronic Security Board of Licensure. Its address and phone number are 7956 Vaughn Road, Suite 392, Montgomery, Alabama 36116 and (334) 264-9388.
[Arkansas] Regulated by: Department of Arkansas State Police, 1 State Police Plaza Drive, Little Rock, Arkansas 72209, phone: 501-618-8600.
Automatic renewal is permitted under state law only if the agreement is for a fixed term and successive, automatic monthly renewals. Termination must be permitted without additional cost or penalty. Ark. Code Ann. 4-86-10(a)-(c).
[District of Columbia] By executing this Agreement, you acknowledge that (1) we have provided you with complete oral and written instructions and demonstrations in the proper care and use of the System; (2) we have provided you with written warranties for the System; and (3) we have informed you that the use of alarms within the boundaries of the District of Columbia is governed by law.
[Florida] RESIDENTIAL CUSTOMERS’ RIGHT OF CANCELLATION: YOU MAY CANCEL THIS AGREEMENT WITHOUT ANY PENALTY OR OBLIGATION WITHIN THREE (3) BUSINESS DAYS FROM THE AGREEMENT DATE, AND RECEIVE A FULL REFUND OF ALL PAYMENTS MADE TO OOMA. YOU MAY ALSO CANCEL THIS AGREEMENT IF, UPON A DOCTOR’S ORDER, YOU CANNOT PHYSICALLY RECEIVE THE SERVICES, OR YOU MAY CANCEL THE AGREEMENT IF THE SERVICES CEASE TO BE OFFERED AS STATED IN THE AGREEMENT. IF YOU CANCEL THE AGREEMENT FOR EITHER OF THESE REASONS, OOMA MAY KEEP ONLY A PORTION OF THE AGREEMENT PRICE EQUAL TO A PRO-RATA PORTION OF THE TOTAL PRICE REPRESENTING THE PROPORTION OF SERVICES YOU USED OR COMPLETED, PLUS THE COST TO OOMA OF ANY RELATED GOODS WHICH YOU HAVE CONSUMED OR RETAINED. THIS AGREEMENT IS FOR FUTURE CONSUMER SERVICES, AND PUTS ALL ASSIGNEES ON NOTICE OF THE CONSUMER’S RIGHT TO CANCEL UNDER CHAPTER 2-18, FLORIDA ADMINISTRATIVE CODE.
Contract renewal – You may terminate automatic rebilling at any time by notifying us at least thirty (30) days before rebilling is to take place that you are terminating the Service. You may learn details about the automatic renewal process and cancellation by contacting us at 525 Almanor Avenue, Suite 200, Sunnyvale, California 94085 or at 1-877-950-6662.
Do not sign this contract before you read it or if it contains any blank spaces.
You are entitled to an exact copy of the contract you sign. Keep it to protect your legal rights.
[Georgia] NOTICE TO THE BUYER (RESIDENTIAL ONLY) – Do not sign this before you read it or if it contains any blank spaces. You are entitled to an exact copy of the paper you sign. There is no time price differential under this Agreement.
Contract renewal – The relevant notice period which applies to a contract where the length is more than 12 months and the automatic renewal is for more than one month is at least 30 days prior to the time specified for serving notice, You may learn details about the automatic renewal process and cancellation by contacting us at 525 Almanor Avenue, Suite 200, Sunnyvale, California 94085 or at 1-877-950-6662.
[Illinois] You may learn details about the automatic renewal process and cancellation by contacting us at 525 Almanor Avenue, Suite 200, Sunnyvale, California 94085 or at 1-877-950-6662.
[New York] Contract renewal – the relevant notice period which applies to a contract where the automatic renewal is for more than one month is at least 15 days and no more than 30 days prior to the time specified for serving notice, calls attention to the existence of the renewal provision and requires personal service or service by certified mail. See N.Y. Gen. Oblig. Law 5-903.
[North Carolina] If you are a residential customer and if we unilaterally terminate monitoring, response or other alarm Service, we will provide notification to you, by verified personal service or certified mail, at least ten (10) days prior to cessation of such Service. If we change or cause the Service to be changed, we will provide you with written notification of such change, the effective date, and the name, address and telephone number of the new provider. The North Carolina Alarm Systems Licensing Board’s address and telephone number are 4901 Glenwood Avenue, Suite 200, Raleigh, NC 27612 and (919)788-5320. For additional information, please refer to 14B NCAC 17.0108.0108.
You may learn details about the automatic renewal process and cancellation by contacting us at 525 Almanor Avenue, Suite 200, Sunnyvale, California 94085 or at 1-877-950-6662.
[Oregon] By executing this Agreement, you acknowledge that (i) pursuant to Section 5(f) of this Agreement, the Services provided herein will renew month-to-month unless you give us written notice of your intention not to renew the Services at least thirty (30) days prior to the expiration of the current term; (ii) the automatic renewal or continuous service offer provisions set forth herein have been made in clear language and in a conspicuous manner. You hereby affirmatively consent to your credit or debit card or payment account to be charged by a third party for the foregoing automatic renewal or continuous service, and as further set forth herein. You understand and acknowledge that you have the right to cancel the Services as set forth herein, and that the instructions regarding how to cancel have been provided in a clear and conspicuous manner. You will be notified of any material change in the terms of such automatic renewal or continuous service, including your right and instructions on how to cancel. All of the above will be provided before the completion of the initial order for automatic renewal or continuous service. TO CANCEL THE SERVICES, YOU MAY SEND YOUR CANCELLATION NOTICE USING THE NOTICE FACILITY ON YOUR ACCOUNT PAGE PROVIDED ON OUR WEBSITE. For additional information, please refer to O.R.S. § 646A.295.
[Texas] Ooma is licensed and regulated by the Texas Department of Public Safety, Private Security Bureau, P.O. Box 4087, Austin, TX 78773-0001, phone: 512-424-2000.
NOTICE TO THE BUYER. DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS BLANK SPACES. YOU ARE ENTITLED TO A COPY OF THE CONTRACT YOU SIGN. UNDER THE LAW YOU HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND UNDER CERTAIN CONDITIONS MAY OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE. KEEP THIS CONTRACT TO PROTECT YOUR LEGAL RIGHTS.