Last updated: November 17, 2022
BY ACCESSING OR USING THE APP, YOU EXPRESSLY AGREE TO BE BOUND BY AND ABIDE BY THESE TERMS AND TO HAVE YOUR OHMPLUG DEVICES PARTICIPATE IN OHMCONNECT’S ENERGY SAVING EVENTS UNLESS YOU PROGRAM YOUR OHMPLUG DEVICES TO REMAIN ON OR YOU OPT YOUR OHMPLUG DEVICES OUT OF A SPECIFIC EVENT. IF YOU DO NOT AGREE TO THESE TERMS INCLUDING ANY UPDATES TO THE TERMS, YOU MAY NOT ACCESS OR USE THE APP, AND YOU MUST IMMEDIATELY DELETE THE APP AND DISCONTINUE ALL USE OF THE APP.
PLEASE READ THE BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 9. IT AFFECTS HOW DISPUTES ARE RESOLVED. Except for certain kinds of disputes described in Section 9, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND OHMCONNECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY. (See Section 9).
CHANGES TO THE TERMS: We may change these Terms on a going-forward basis at any time in our sole discretion. Our notice to you may include sending a message to the email address you provided to us (for a material change to the Terms applicable to you), and/or notice through the App. We will update the “Last Updated” date at the top of these Terms when we make changes. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the App. Your continued use of the App following any changes to these Terms will constitute your acceptance of those changes. If you do not agree to the revised Terms, you must stop using the App and delete your Account.
(a) General: The App is designed to allow you to control your OhmPlug smart plug(s) and review device usage data with the goal of decreasing energy usage when energy is in high demand, as further described in the App description. In addition, if you join OhmConnect’s demand response program, your OhmPlug devices will automatically turn off during OhmConnect energy-savings events in your area unless you program your OhmPlug devices through the App to remain on or you use your OhmConnect account to opt your OhmPlug devices out of a specific event. We do not guarantee or promise any specific level of energy savings or other benefit from use of the App. Actual energy savings and benefits vary depending on a variety of factors, many of which are beyond Our control or knowledge. Your use of the App is subject to limitations and restrictions outside Our control, including wireless network capabilities. You understand and agree that We are under no obligation to provide support for the App.
(b) OhmConnect Account. By accessing the App, you are creating an OhmConnect account, which is subject to the OhmConnect Terms of Service (available at https://www.ohmconnect.com/terms-of-service), and We will automatically sync your App account and share data with your OhmConnect account. OhmConnect’s free demand response program is available to California customers with PG&E, SCE or SDG&E electric service accounts, New York customers with Con Edison electric service accounts, and Texas customers with OhmConnect retail electric service accounts, as well as in other locations in the United States. To participate in OhmConnect’s demand response program and energy saving events through the App, you may need to authorize your utility usage data to be shared with OhmConnect. More information about OhmConnect’s demand response program is available at www.ohmconnect.com and in the OhmConnect Terms of Service.
(c) Opting Out of Energy Saving Events. You can use the App to program your OhmPlug devices so that they remain on during OhmConnect energy saving events. You also can use your OhmConnect account to opt your OhmPlug devices out of a specific energy-saving event.
(d) Updates: We may update, modify, or discontinue the App (in whole or in part) or any features or functions within the App, at any time, in Our sole discretion.
(e) Disenrollment and Account Termination: You may terminate your use of the App at any time. To do so, you will need to follow the instructions made available through the store from which you downloaded the App. Certain data associated with your App may not be deleted where such information is required by a regulatory entity for audit purposes, where information is used in aggregate to enable Us to provide the App, or where We are required to maintain the data to comply with applicable laws.
(f) Eligibility: You must be at least 18 years old to use the App. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old (or such other age as may be required in your jurisdiction to validly form legal agreements, if older than 18); and (ii) if you are an entity, organization or company, the individual accepting these Terms has the authority to bind such an entity, organization or company to these Terms.
(a) Use of the App: Subject to your compliance with these Terms, We grant you a non-exclusive, non-transferable and non-sublicensable right to access and use the App including any intellectual property therein, solely for the purpose of managing your OhmPlug device(s). We and our licensor(s) reserve all rights to the App not expressly granted, whether by implication, estoppel, or otherwise.
(b) Licensee Restrictions: The App is licensed, not sold. We and its licensors retain all right, title, and interest in and to the App, all content and other subject matter contained in or made available through the App, and all related intellectual property rights. You obtain no rights in or to the App under these Terms or any content or other subject matter made available through the App. You may not reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of the App, except as expressly authorized herein. You may not reverse engineer, decompile or disassemble any portion of the App, provided that to the extent the foregoing prohibitions are expressly prohibited by applicable statutory law, We shall retain the maximum protection available against reverse engineering, decompiling, or disassembly under applicable law. You also may not remove any patent, copyright, trade name, trademark, service mark, logo or other proprietary rights notice from the App.
(c) Using the App with Connected Devices: You may wish to use the App to connect your OhmPlug devices with third-party smart products that are connected to the Internet through various enabling services (“Connected Devices”). You have the ability to control and you are solely responsible for your use of the OhmPlug devices and the App with Connected Devices. You understand and agree that We may experience issues in connecting to a Connected Device due to Internet, wireless connectivity or other service issues; this may impact the App’s ability to connect with the Connected Devices. Your use of the Connected Devices may be subject to the third party provider’s terms and conditions (“Third Party Terms”). You understand and agree that We are not a party to the Third Party Terms, and We are not responsible for and have no liability related to the Connected Devices or Third Party Terms. You may share information with the Connected Devices, such as nicknames. Your use of the Connected Devices and any information you share with the Connected Devices and its manufacturers or licensors is at your own risk and you agree We have no liability.
(d) Information Provided by You: To the extent you provide information to Us through the App, you are granting a license to Us for the purpose of providing the App. By providing the information, you represent and warrant that you have the authority and rights to provide the Information and grant the relevant rights.
(e) Ownership: We and our licensor(s), vendor(s), agent(s), and content provider(s) own all of the content and intellectual property made available through or featured or displayed on the App, including software, code, trademarks and service marks, text, graphics, photographs, images, moving images, sound, and illustrations (“Content”). All elements of the App, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark, and other laws relating to intellectual property rights. You may not modify any Content and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Content. You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the App. The App, Content, and all related rights remain the exclusive property of OhmConnect or its licensors, vendors, agents, and/or Content providers unless otherwise expressly agreed, and are protected by U.S. and international copyright laws.
(f) As explained above in Section 1, if you access the App and join OhmConnect’s demand response program, your OhmPlug devices will automatically turn off during OhmConnect energy-savings events in your area unless you program your OhmPlug devices through the App to remain on or you use your OhmConnect account to opt your OhmPlug devices out of a specific event. Your participation in Our demand response program is subject to different terms and conditions, which are available at https://www.ohmconnect.com/terms-of-service.
If you provide us with any ideas, proposals, suggestions or other materials relating to the App (“Feedback”), We may use such Feedback in any manner for any purpose without restriction or compensation. You acknowledge and agree that such Feedback is not confidential and We have no obligation to use the Feedback.
We may terminate or suspend your use of the App at any time and without prior notice, for any reason or no reason, including if We believe that you have breached any provision of these Terms. Upon any such termination or suspension, all rights and licenses granted under these Terms, including your right to use the App will immediately cease, and We may, without liability to you or any third party, immediately deactivate your use of the App. All sections that by their context ought to survive these Terms will survive any termination or expiration of these Terms.
WE ARE NOT PROVIDING ANY WARRANTIES RELATING TO THE APP OR ANY CONNECTED DEVICES THAT MAY BE MADE USED IN CONJUNCTION WITH THE APP. THE APP AND ALL INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE APP ARE MADE AVAILABLE TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WE DO NOT WARRANT THAT YOU WILL ACHIEVE ANY LEVEL OF ENERGY SAVINGS OR THAT THE APP WILL BE ERROR FREE OR UNINTERRUPTED. WE DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, IS MADE REGARDING ACCURACY, ADEQUACY, COMPLETENESS, LEGALITY, RELIABILITY OR USEFULNESS OF ANY INFORMATION OR CONTENT CONTAINED IN OR THROUGH THE APP OR THE RESULTS THAT YOU MAY OBTAIN THROUGH THE APP. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF OHMCONNECT, ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS, ASSIGNS AND SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AS WELL AS EACH AFFILIATED ENTITY’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. OHMCONNECT IS NOT IN THE BUSINESS OF PROVIDING ELECTRICITY OR OTHER UTILITY APP AND IS NOT RESPONSIBLE FOR YOUR ELECTRIC OR OTHER UTILITY APP. WE ARE NOT RESPONSIBLE FOR ANY DISCLOSURE OF INFORMATION YOU PROVIDE TO THIRD PARTIES OR THAT YOU CONNECT TO AS PART OF YOUR USE OF THE APP. YOUR USE OF ANY CONNECTED DEVICES THROUGH THE APP IS AT YOUR OWN RISK AND WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE FOREGOING.
1. OHMCONNECT AND ITS AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE APP OR FOR ANY DAMAGES FOR LOST PROFITS, LOSS OF USE OF THE APP, LOSS OF DATA, LOSS OF PRIVACY OR SECURITY, LOSS OF OTHER INTANGIBLES, OR UNAUTHORIZED ACCESS TO OR USE OF THE APP, YOUR DATA OR USER CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND EVEN IF WE ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE APP IS TO STOP USING THE APP. EXCEPT AS PROVIDED IN SECTION 9 BELOW, THE MAXIMUM AGGREGATE LIABILITY OF OHMCONNECT ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE APP, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED $5.00. ALL DISCLAIMERS, LIMITATIONS, OR EXCLUSIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF THE AFFILIATED ENTITIES AS WELL AS EACH AFFILIATED ENTITY’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS. 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 DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless Us and our affiliated entities (including the licensors, suppliers and service providers of Our and its affiliated entities) from and against all claims, damages, losses, costs and expenses (including attorneys’ fees) arising out of your use of the App or any violation of these Terms by you. We reserve the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
As used in this Arbitration section, “you” and “your” mean the registered user(s) of the App, and all of his/her heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, predecessors in interests, successors, assigns, as well as all authorized and unauthorized users or beneficiaries of services under this or prior agreements between you and Us. We shall be deemed to include all of Our heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, directors, officers, predecessors in interests, successors, assigns.
(a) Generally: In the interest of resolving disputes between you and Us in the most expedient and cost-effective manner, and except as described in Sections 9(b) and 9(c), you and We agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the App or these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises before, during or after the termination of these Terms, including any issue concerning the validity, enforceability, or scope of this Agreement or this agreement to arbitrate. The arbitrator (and not any court) shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are applicable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. If there is a dispute about whether this arbitration agreement can be enforced or applies to a dispute, you and We agree that the arbitrator will decide that issue. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND OHMCONNECT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. To the fullest extent possible, the Federal Arbitration Act (“FAA”) and federal arbitration law apply to this arbitration agreement under Section 9.
(b) Exceptions: Notwithstanding the provisions of Section 9(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Opt Out: If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 9 within thirty days after the date that you agree to these Terms by sending a message to email@example.com or a letter to OhmConnect, Inc., Attention: Legal Department – Arbitration Opt-Out, 371 3rd Street, 2nd Floor, Oakland, CA 94607, that specifies your full legal name, the email address associated with your Account on the App, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once We receive your Opt-Out Notice, this Section 9 will be void and any action arising out of these Terms will be resolved as set forth in Section 15. The remaining provisions of these Terms will not be affected by your Opt-Out Notice. You may reject any change we make to Section 9 (except address changes) by sending us notice within thirty days of the change to the addresses provided above. If you do, the most recent version of Section 9 before the change you rejected will apply.
(d) Arbitrator: Except where prohibited by law, you and We agree that any and all disputes are to be arbitrated by a single arbitrator. An arbitration commenced pursuant to these Terms shall be administered and governed by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Rules”) and its Procedures for the Resolution of Disputes through Document Submission ("Document Submission Procedures"). The arbitration will be conducted solely based on written submissions. The arbitration will not require any personal appearance by the parties or witnesses unless the arbitrator determines that a telephonic or in-person conference or hearing is necessary based on the request of one or more of the parties. To the extent there is any inconsistency between the terms of this Arbitration Section and the AAA Rules the provisions of these Terms shall apply. The AAA Rules, forms and information are available online at www.adr.org.
(e) Notice of Arbitration; Process: A party who intends to seek arbitration 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”). Our address for Notice is: OhmConnect, Inc., 371 3rd Street, 2nd Floor, Oakland, CA 94607. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) 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 thirty days after the Notice of Arbitration is received, you or We may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing.
(f) Fees: If you commence arbitration in accordance with these Terms, We will reimburse you for your payment of the initial filing fee, unless your claim is for more than $1,000, in which case the payment of any fees will be governed by the AAA Rules. If it is determined by the arbitrator that you cannot afford such fees, We will pay all arbitration fees and expenses. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen days of the arbitrator’s ruling on the merits.
(g) No Class Actions: YOU AND OHMCONNECT 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 We 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.
(h) Enforceability: If Section 9(g) or the entirety of this Section 9 is found to be unenforceable, or if We receives an Opt-Out Notice from you, then the entirety of this Section 9 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.
(i) LIMITATION ON CLAIMS: YOU MUST FILE IN SMALL CLAIMS COURT OR FILE ARBITRATION OF ANY DISPUTE WITHIN ONE YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
These Terms are governed by and construed under the laws of the State of California, without regard to its principles of conflicts of law, and regardless of your location. You and We hereby submit to the personal and exclusive jurisdiction of the state courts and federal courts in Alameda County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
You are responsible for complying with United States export controls and sanctions laws and regulations and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (i) located in or a resident of any country that is the subject of comprehensive U.S. sanctions, or that has been designated by the U.S. government as a “terrorist supporting” country; or (ii) on any of the U.S. government lists of prohibited or restricted end users.
These Terms and all other terms and conditions referenced herein constitute the entire agreement between you and Us relating to the App.
371 3rd Street, 2nd Floor,
Oakland, CA 94607
The following applies to any part of the App you acquire from an electronic store branded, owned, or controlled by Apple or any affiliate of Apple (“App Store-Sourced Software”):
You acknowledge and agree that these Terms are solely between you and Us, not Apple, and that Apple has no responsibility for the App Store-Sourced Software or content thereof. Your use of the App Store-Sourced Software must comply with the App Store Terms of App. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store-Sourced Software. In the event of any failure of the App Store-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Us as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App Store-Sourced Software or your possession and/or use of the App Store-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the App Store-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Us as provider of the software. You acknowledge that, in the event of any third-party claim that the App Store-Sourced Software or your possession and use of that App Store-Sourced Software infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You and We acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the App Store-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the App Store-Sourced Software against you as a third-party beneficiary thereof. You must comply with applicable third party terms of agreement when using the App Store-Sourced Software. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Our contact information for any questions, complaints or claims with respect to the App Store-Sourced Software is firstname.lastname@example.org.