Software End User License Agreement

 

Last Updated: 19 January 2024

 

This Software End User License Agreement (“EULA”) is a legal agreement between you (either an individual or an entity) and dcbel LLC (“dcbel,” “we,” or “us”) regarding the use of Software (including the Mobile Solution and Orchestrate OS). References herein to the Software includes user documentation provided in “online” or electronic form and other Documentation applicable to the Software.

 

BY CREATING AN ACCOUNT, CLICKING THE “AGREE” BUTTON, OR DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS EULA, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS EULA; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS IN THIS EULA, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND DELETE IT FROM YOUR DEVICES, SYSTEMS, OR OTHER TECHNOLOGY.

 

ARBITRATION NOTICE AND CLASS ACTION WAIVER. Except for certain kinds of disputes described in Section 7, you agree that disputes arising under this EULA (including any dispute arising from your purchase or use of the Software) will be resolved by binding, individual arbitration, and BY ACCEPTING THIS EULA, YOU AND DCBEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. (See Section 7.)

 

1.                    Overview. Capitalized terms used and not defined in this EULA have the respective meanings assigned to them in the General Terms and Conditions (available at here) (“Agreement”). In addition to the Agreement, this EULA applies to, and governs, your access to and use of our Software.

 

2.                    License.

 

1.              Grant. Subject to the terms of this EULA, we grant you a limited, non-exclusive, and nontransferable license to: (a) download, install, and use one copy (in object code format) of the Mobile Solution on a single mobile device owned or otherwise controlled by you (“Device”); (b) internally use other Software pre-installed on a Product; and (c) access, stream, download, and use the Content and Services (as defined in Section 4) made available in or otherwise accessible through the Software (in each case, solely for your personal, non-commercial internal use and strictly in accordance with this EULA, the Agreement, and the Documentation).

 

2.              Reservation of Rights. You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this EULA, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this EULA. We reserve and will retain our entire right, title, and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this EULA.

 

3.              Updates. We may from time to time in our sole discretion develop and provide updates to our Software, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionalities. Based on your Software settings and Internet connectivity: (i) the Software may automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates.  You shall promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Software and be subject to all terms and conditions of this EULA. Our sole obligation to you with respect to the Support Services for our Mobile Platform is to provide you with Updates.

 

3.                    Push Notifications. When you install our Mobile Platform, you agree to receive push notifications, which are messages an application sends you on your Device when the application is not on. Discontinuing push notifications typically requires you to change your settings on your Device. Each type of device operates differently, so you should check your user manual if you’re having trouble.

 

4.                    Content and Services.

 

1.              Access.  The Software may provide you with access to our websites (“Sites”), as well as products and services accessible thereon, and certain features, functionality, and content accessible on or through the Software (collectively, “Content and Services”). Your access to and use of such Content and Services are governed by our Website Terms of Use (available at https://www.dcbel.energy/terms-and-conditions/) and Privacy Policy which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Website Terms of Use and Privacy Policy and/or to register with the Sites, and your failure to do so may restrict you from accessing or using certain of Software features and functionality. Any violation of such Website Terms of Use will also be deemed a violation of this EULA.

 

2.              Geographic Restrictions. The Content and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.

 

5.                    Term and Termination.

 

1.              Term. The terms set forth in this EULA apply to you once you access or use the Software and will continue in effect until terminated by you or us as set forth in this Section.

 

2.              Termination. You may terminate this EULA, solely with respect to the Mobile Platform, by deleting the Mobile Platform and all copies thereof from your Device. We may terminate this EULA at any time without notice, including, without limitation if we cease to support the Software, which we may do in our sole discretion. If Software is provided to you as part of a Platform Offering, this EULA will automatically terminate upon the expiration of the term of your Platform Offering. In addition, this EULA will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this EULA. Upon termination: (i) all rights granted to you under this EULA will also terminate; and (ii) you must cease all use of the Software and delete all copies of the Mobile Platform from your Device. Termination will not limit any of our rights or remedies at law or in equity.

 

 

6.                    Limitation of Liability.

 

To the fullest extent permitted by law, in no event will dcbel and its affiliates, and each of their respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, agents, representatives, predecessors, successors and assigns (together, the “dcbel Entities”) be liable to you for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, loss of use or data, loss or diminution in value of assets or securities, damages for business interruption or any other intangible loss) arising out of or in any way relating to your access to, or use or receipt of, or your inability to access, use, or receive, the Software, or otherwise related to the subject matter of this EULA (including, but not limited to, any damages caused by or resulting from reliance on any information obtained from any dcbel Entity, or from events beyond the dcbel Entities’ reasonable control, regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute, or any other legal or equitable theory, and whether or not any dcbel Entity has been informed of the possibility of such damages and regardless of whether such damages were foreseeable.

 

Except as expressly provided in Sections 7.4 and 7.5 and to the fullest extent permitted by law, under no circumstances will the dcbel Entities’ joint, aggregate liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether the applicable claim is based on contract, tort, or otherwise, exceed the greater of: (i) the amount paid by you to dcbel under for the Software; or (ii) $100 (USD). 

 

Each provision of this EULA that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does appropriately allocate the risks between the parties under this Agreement. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this EULA. The limitations in this Section 6 will apply even if any limited remedy fails of its essential purpose, and the foregoing shall constitute the dcbel Entities’ sole liability and obligation in respect hereof, regardless of the form of action, whether based in contract, tort (including negligence), statute, or any other legal or equitable theory.

 

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

 

7.                    Arbitration.

 

1.              Generally. Except as described in Section 7.2 and 7.3, you and dcbel agree that every dispute arising in connection with this EULA, the Software, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.

 

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

 

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

 

3.              Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 7 within 30 days after the date that you agree to this EULA by sending a letter to dcbel LLC, Attention: Legal Department – Arbitration Opt-Out, 1196 Cherry Avenue, San Bruno, CA 94066, USA that specifies: your full legal name, the email address associated with your Account, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once dcbel receives your Opt-Out Notice, this Section 7 will be void and any action arising out of this EULA will be resolved as set forth in Section  9.2. The remaining provisions of this EULA will not be affected by your Opt-Out Notice.

 

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

 

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

 

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

 

7.              Arbitration Relief. Except as provided in Section 7.7, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by dcbel before an arbitrator was selected, dcbel will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.

 

8.              No Class Actions. YOU AND DCBEL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and dcbel agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

 

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

 

10.           Enforceability. If Section 7.7 or the entirety of this Section  7 is found to be unenforceable, or if dcbel receives an Opt-Out Notice from you, then the entirety of this Section 7will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 9.2 will govern any action arising out of or related to this EULA.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

4.              Counter Notification. If you receive a notification from dcbel that material made available by you on or through the Products has been the subject of a Notification of Claimed Infringement, then you will have the right to provide dcbel with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to dcbel’s Designated Agent through one of the methods identified in Section 8.1, and include substantially the following information:

 

(a)                your physical or electronic signature;

 

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

 

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

 

(d)                your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which dcbel may be found, and that you will accept service of process from the person who provided notification under Section 8.1 above or an agent of that person.;

 

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

 

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

 

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

 

9.        Miscellaneous.

 

1.              General Terms. This EULA, together with the Privacy Policy, General Terms, and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between you and dcbel regarding your use, receipt, and license of the Software. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of this EULA, or any provision of this EULA, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this EULA is for convenience only and will not have any impact on the interpretation of any provision. Throughout this EULA the use of the word “including” means “including but not limited to.” If any part of this EULA is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

 

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

 

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

 

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

 

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

 

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

 

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

 

9.                 Notice Regarding Apple. This Section only applies to the extent you are using our Mobile Platform on an iOS device. You acknowledge that this EULA is between you and dcbel only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Mobile Platform or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Mobile Platform. If the Mobile Platform fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Mobile Platform to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Mobile Platform. Apple is not responsible for addressing any claims by you or any third party relating to the Mobile Platform or your possession and/or use of the Mobile Platform, including: (a) product liability claims; (b) any claim that the Mobile Platform fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Mobile Platform and/or your possession and use of the Mobile Platform infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Mobile Platform. Apple and Apple’s subsidiaries are third-party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third-party beneficiary of this EULA. You hereby 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.