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CASPAR REGISTERED USER AGREEMENT IMPORTANT—READ CAREFULLY AS IT TO CREATES A LEGALLY BINDING CONTRACT

BRAINOFT, INC., DBA CASPAR (“Caspar”) IS THE OPERATOR OF THE SMART HOME SERVICES (AS DEFINED BELOW) LOCATED IN YOUR UNIT AND HAS ADOPTED THE FOLLOWING TERMS OF USE (THE “AGREEMENT” OR “TERMS AND CONDITIONS”) WHICH SETS FORTH THE TERMS AND CONDITIONS UPON WHICH Caspar PERMITS YOU TO ACCESS AND USE THE SMART HOME SERVICES, AND THE UNIT EQUIPMENT, MADE AVAILABLE BY Caspar TO YOU (COLLECTIVELY, THE “SERVICES”).   

THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND TIME LIMIT ON SUBMITTING CLAIMS THAT AFFECT YOUR RIGHTS.  PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

BY USING ANY PORTION OF THE SERVICE IN ANY MANNER, INCLUDING, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND YOU HEREBY ACCEPT THE TERMS CONTAINED HEREIN WITHOUT MODIFICATION OF ANY KIND.

Caspar is excited to provide you access to our cutting-edge service enabling you to enjoy our smart home functionality and connectivity services within your Unit and our related monitoring and maintenance services that Caspar calls its “Smart Home Service.”  

The functionality provided to you via our Smart Home Service is described more fully on our website located at http://caspar.ai

Your “Unit” is the apartment or condominium stated on your Order Form that we have on file for you.  In order for us to allow you to access and use our Smart Home Service, you agree to abide by the following:

1—General Agreement to Be Bound.

In order for us to enable you to use the Smart Home Service, you will need to do three things: (1) completing and execute a lease addendum with your landlord that, among other things, authorizes your landlord to provide Caspar contact information (e.g., your phone number, etc.) and states the level of service you are initially subscribing for (as and if applicable), the fees you agree to pay (the “Fees”), the initial term of service, and providing your landlord with necessary contact and billing information (the “Order Form”), (2) agree to become a party to this Agreement, and (3) establishing a Caspar account by registering with on the smartphone or tablet application (a “Caspar Account”).  

If you do not want to agree to become subject to this Agreement; do not click the “I accept the Caspar Registered User Agreement” button, do not complete your account registration with us, and do not use our Smart Home Services in any manner.  

If you agree to the terms of this Agreement and want to become a party to it, click the “I accept the Caspar Registered User Agreement” button and we can move to the next step of finalizing your Caspar Account so you can begin using the Smart Home Service.  

By clicking “I accept the Caspar Registered User Agreement ” button you acknowledge and agree that the terms of this Agreement shall apply to any use by you of the Smart Home Service.  Your right to use the Smart Home Service shall be limited at all times to use of the Smart Home Service within your Unit on file with us.  

Finally, if you want to print or save a copy of this Agreement, just copy and paste all the text into a document of your choice or click the “e-mail me a copy” button].  We highly encourage you to do so.

2—You Agree to Be Responsible For Your Smart Home Account.

During the registration process, Caspar will require you to provide us with certain information.  You agree that the information will be accurate and you agree to maintain that information to ensure that it is always current and complete in all respects. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, Caspar reserves the right to terminate your Caspar Account and your access to and use of the Smart Home Service.

You must be at least fourteen years of age to register a Caspar Account; provided, however, that if you are under the age of 18, your parent or legal guardian may register a Caspar Account on your behalf by contacting Caspar at support@caspar.ai.  IF YOU ARE UNDER THE AGE OF 18, REGISTRATION AND ACCESS TO THE SMART HOME SERVICE SHALL ONLY BE PROCESSED AND GRANTED VIA DIRECT CONTACT TO Caspar THROUGH THE AFOREMENTIONED E-MAIL ADDRESS.  By registering a Caspar Account via Caspar’s automated registration process, you are representing and warranting to Caspar that you are at least 18 years of age.

As part of the account set-up and registration process, you may be asked to select a username (currently, by default, your user name will be the phone number you provide to us via your Order Form) and password (used to communicate with Caspar related to your Caspar Account) which must be acceptable by Caspar in its sole discretion.  You agree you are entirely responsible for maintaining the confidentiality of any password and Caspar Account information that you may create now or in the future. You agree you are entirely responsible for any and all activities that occur under your account.  

You agree to notify Caspar immediately of any unauthorized use of your account or any other breach of security. You agree you, and not Caspar, shall be solely liable for any loss or damage that may be incurred as a result of someone else using the Smart Home Service within you Unit or otherwise using your password or account, in any case either with or without your knowledge, to access your Caspar Account (or gain access to information contained therein) via your Caspar Account.  

3—Caspar Exclusively Owns the Smart Home Service Platform; Rights to Equipment.  

Caspar is solely permitting you the limited, non-exclusive right to access and use the software, including any and all improvements, modifications, enhancements, fixes, updates, upgrades and future versions and, whether made available for free or for a fee to you, that in any manner comprise the Smart Home Services platform solely (the “Caspar Software”) to allow you to use the Smart Home Service only (i) within your Unit, (ii) during the period in which you have an active Caspar Account, and (iii) for non-commercial purposes.  Your Caspar Account will automatically become inactive at any point in which you no longer are a resident of the Unit or you fail to pay Caspar any amounts owed to Caspar.

Additionally, you agree that any hardware or equipment of any kind located within your Unit that was placed within your Unit to facilitate any portion of the Smart Home Services (the “Unit Equipment”) by or on behalf either Caspar or the owner of the building in which your Unit is located (the “Owner”) shall remain the sole and exclusive property of either Caspar or the Owner, as applicable. You agree to allow Caspar or the Owner, as applicable, to enter your Unit during normal business hours, upon reasonable prior written notice, to access, repair, replace, and/or retrieve any such Unit Equipment.  You agree to be responsible for any theft, damage, or destruction to any such Unit Equipment.  

All Caspar Software is the proprietary property of Caspar or its partners or licensors and is protected by applicable intellectual property and other laws.  You agree not to remove or alter any copyright notices or other proprietary notices included in the Caspar Software.

4—Your Privacy Rights.

Caspar respects your privacy rights.  Therefore, we have designed and implemented a privacy policy located at

https://caspar.ai/caspar-privacy-policy

(the “Privacy Policy”).  The Privacy Policy further governs your use of the Smart Home Services and by agreeing to be bound to this Agreement you are also agreeing to the terms of the Privacy Policy (which may be amended and modified from time to time). If any provision in this Agreement conflicts with a provision in the Privacy Policy, the Privacy Policy shall govern.  

5—Payments; Auto-Renewal; Changes to Service Levels

You agree to pay Caspar all applicable Fees for the right to use the Smart Home Service, as in accordance with and as indicated on either your Order Form or as updated by you through our Customer Service Page.  Our “Customer Service Page” is a webpage made accessible to you by Caspar through your use of your Caspar account that (i) allows you to change service levels and offerings, (ii) describe the then-current fees charged for each level of service, and (iii) other commercial terms that are posted from time to time.  

You authorize the billing agent stated on the Order Form (the “Billing Agent”) to charge you for all applicable Fees using your selected payment method. If you change your level of service through access to the Customer Service Page, your Billing Agent will be informed by Caspar in order to ensure proper Fees are charged to you on an on-going basis.  Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.  Notwithstanding anything stated herein to the contrary, you acknowledge that Caspar has no obligations or responsibilities related to Fees charged or incurred by you and any disputes you may have are between you and the Billing Agent, exclusively.  You understand that failure to pay Fees in accordance with the terms specified in the Order Form (or as adjusted by you from time to time through changes submitted by your via the Customer Service Page) will result in suspension or termination of the Smart Home Service and/or your Caspar Account Caspar has no responsibility for any taxes for which you are responsible via use of the Smart Home Service or any penalties related thereto (“Taxes”). IF YOUR Caspar ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD, YOU WILL BE CHARGED AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS YOU NOTIFY Caspar THAT YOU WANT TO CANCEL OR DISABLE AUTO-RENEWAL. Caspar may revise its rate schedule by providing you at least thirty days’ notice prior to your next auto-renewal period.  Upon any renewal of your account, you agree to pay Fees in accordance to any revised rate schedule with such changes in Fees being communicated by Caspar to your Billing Agent for purposes of billing you the correct amount on a forward-looking basis.

6—Do No Harm.

You are solely responsible for any content (including your voice/voice commands), information, data, photos, video or profiles that you upload, publish or display through the Internet via your use of the Smart Home Service (collectively the “Data”).

By uploading, publishing or displaying Data through use of the Smart Home Service, you automatically grant, and you represent and warrant that you have the right to grant, to Caspar an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use the Data in any manner related to providing the Smart Home Services to you.

You also agree not to use the Smart Home Service, the Caspar Software, or any Caspar equipment (including Unit Equipment) to (a) promote (1) information you know is just false or (2) anything that is illegal; (b) do things like spam, phish, transmit viruses, falsify clicks and other related, nefarious stuff; or (c) run or try to run any ponzi schemes, contests/sweepstakes, or similar activities.

You also agree to only use the Smart Home Service, the Caspar Software, or any Caspar equipment (including Unit Equipment) for your personal, non-commercial and you will not in any manner (i) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Smart Home Service, the Caspar Software, or any Caspar equipment (including Unit Equipment) except as expressly permitted by Caspar; (ii) decompile, reverse engineer or disassemble the Smart Home Service or the Caspar Software except as may be permitted by applicable law; (iii) link to, mirror or frame any portion of the Smart Home Service or the Caspar Software; (iv) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Smart Home Service or the Caspar Software or unduly burdening or hindering the operation and/or functionality of any aspect of the Smart Home Service, the Caspar Software, or any Caspar equipment (including Unit Equipment);or (v) attempt to gain unauthorized access to or impair any aspect of the Smart Home Service, the Caspar Software, or any Caspar equipment (including Unit Equipment) or any of the foregoings related systems or networks.

You agree to indemnify and hold Caspar, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Smart Home Service, your Caspar Account, or the Caspar Software in violation of this Agreement or your violation of any law or the rights of a third party.

7—Caspar Can Change The Scope of the Smart Home Service and Amend This Agreement.

Caspar is a vibrant company with a lot of ideas.  Therefore, we need to reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Smart Home Service (or any part thereof) with or without notice. You agree that Caspar shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Smart Home Service (or any part thereof) except to the extent expressly stated herein or in the Order From.  To that end, if you pay in advance for access to the Smart Home Service and Caspar suspends its Smart Home Service, your subscription period will be automatically extended for a period equal to the period in with the Caspar service suspension lasts.  Moreover, if you pay in advance for access to the Smart Home Service and Caspar discontinues its Smart Home Service, you will be entitled to a pro-rated a pro-rata refund of any pre-paid fees that is associated with your then-current applicable subscription term calculated based on the number of days during the applicable term you were provided access to the Smart Home Service and the anticipated applicable term of your subscription (e.g., if termination occurs where 25% of the anticipated term remains, any refund of pre-paid fees would equal 25% of the total amount you paid for such term.

Caspar also reserves the right, in its sole discretion, to change, modify, add, or delete portions of this Agreement at any time by requiring you to agree to any such changes upon your attempt to sign-in to your Caspar Account or, as applicable, to continue to use the Smart Home Service.  Notwithstanding the foregoing, your use of the Smart Home Service in any manner after any such changes occur and after Caspar (attempts to) notify you via e-mail, push notification, text message, or other automated format based on the contact information we have on record for you shall constitute your acceptance of the new terms.  Should you have any questions regarding the specific terms of this Agreement (as amended), please direct them to support@caspar.ai.

8—Termination; Payment Obligations.

You may terminate your Caspar Account and access to the Smart Home Service by submitting a termination request to Caspar at support@caspar.ai. or by ceasing all use of the Caspar Software and Smart Home Services.  Moreover, Caspar may terminate and delete your Caspar Account, your access to all or portions of the Smart Home Service or your use thereof for any reason or no reason at any time, in Caspar’s sole discretion.  

Termination of your Caspar Account includes any or all of the following: (a) removal of access to all or part of the offerings within the Smart Home Service, (b) deletion of your password, and (c) barring of further use of all or part of the Smart Home Service.  Upon termination of your Caspar Account, you agree to delete and uninstall the Caspar Software on your device(s) (e.g., your personal mobile phone that you may have downloaded Caspar’s applicable mobile application(s)) and cease using the Unit Equipment in any manner.  You will remain responsible for any payments that have yet to be made unless otherwise stated in our refund policies.  For example, if you sign up for one year of service whereby you pay monthly, if you terminate your Caspar Account after nine months, you will remain obligated to pay for the remaining three months.  If Caspar terminates this Agreement without cause, you will be relieved fully of any further payment obligations and if you have pre-paid Caspar any amounts related to your applicable subscription term, Caspar will provide you a pro-rata refund of any pre-paid fees that as associated with the applicable subscription term calculated based on the number of days during the applicable term you were provided access to the Smart Home Service and the anticipated applicable term of your subscription (e.g., if termination occurs where 25% of the anticipated term remains, any refund of pre-paid fees would equal 25% of the total amount you paid for such term).  Without limitation, and by way of example, the parties agree termination will be with “cause” if you violate any term of this Agreement or the Order Form or in any manner violate any law or third party’s rights through use of the Smart Home Service.

9—User Submissions.

We are always looking to have a dialogue with our users to make sure the Smart Home Service is everything it can be. If you choose to send us comments, feedback, suggestions, ideas, or the like, you agree that such information shall become automatically the property of Caspar. Essentially, you will be automatically assigning all property rights and interests to Caspar allowing us unlimited use, commercial or otherwise, of anything submitted to us. Furthermore, Caspar is not under any obligation (1) to maintain any submissions in confidence; (2) to pay to you any compensation for any submissions; or (3) to respond to any submissions.

10—Disclaimers; Limitation of Liabilities.

The Smart Home Service may be temporarily unavailable from time to time for maintenance or other reasons. Caspar assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Caspar is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet, including injury or damage to your computer, mobile phone, tablet or other equipment related to or resulting from participating or downloading materials in connection with the Internet and/or in connection with or your use of the Smart Home Service.

To the furthest extent allowed by law, under no circumstances will Caspar be responsible for any loss or physical damage, including personal injury or death, resulting from anyone’s use (including your use) of the Caspar Software, the Smart Home Service, any Data, or any interactions between users of the Smart Home Service, whether online or offline.

THE Caspar SOFTWARE, THE SMART HOME SERVICE, AND ALL UNIT EQUIPMENT ARE PROVIDED “AS-IS” AND Caspar DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Caspar CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE Caspar SOFTWARE, THE SMART HOME SERVICE, OR ANY UNIT EQUIPMENT AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU FULLY ASSUME ALL RISKS ARISING OUT OF OR RELATED TO YOUR USE OF THE Caspar SOFTWARE, THE SMART HOME SERVICE, AND/OR ANY UNIT EQUIPMENT.  

EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL Caspar BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ALSO LOST PROFITS ARISING FROM YOUR USE OF THE Caspar SOFTWARE, THE SMART HOME SERVICE, AND/OR ANY UNIT EQUIPMENT, EVEN IF Caspar HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, Caspar’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF $50.00 OR THE AMOUNTS PAID BY YOU TO Caspar FOR YOUR USE OF THE SMART HOME SERVICE DURING THE THREE MONTH PERIOD PROCEEDING THE CLAIM OF DAMAGE.

11—Governing Law.

This Agreement and performance under this agreement shall be governed by the laws of the State of California and the validity, interpretation and effect shall be governed by the laws of California applicable to contracts executed and performed wholly therein.

12—Dispute Resolution and Binding Arbitration Provision.  

Definitions Specifiic to this Section

.  As used in this Dispute Resolution and Binding Arbitration Provision, the terms “Caspar,” “we,” “us,” and “our” refer to BrainofT, Inc., including its subsidiaries and agents; the terms “you” and “your” refer to you as an individual as well as other individuals you allow to access or use the Smart Home Services, Caspar Software, and/or Unit Equipment (as each term is defined above), and any legal entity you control, work for, or represent when you access or use the Smart Home Services, Caspar Software, and/or Unit Equipment. The word “Claims” means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the Smart Home Services, Caspar Software, and/or Unit Equipment. This includes but is not limited to disagreements about the validity, enforceability, or scope of this Dispute Resolution and Binding Arbitration Provision.

Informal Efforts to Resolve Dispute

.  If a dispute arises between you and CASPAR, you should first attempt to resolve it by sending an email to support@caspar.ai or by sending the details of your complaint, including your contact information for a response, to the address listed below.  We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.

Agreement to Arbitrate; Right to Opt Out; Prohibition of Class Actions and Non-Individual Relief

.  If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights.  

THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD TO YOU ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND FORMS OF RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF AS WELL AS STATUTORY DAMAGES), AND MUST FOLLOW THE LAW AND TERMS OF THIS AGREEMENT AS A COURT WOULD.  ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS ONLY; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED.

YOU UNDERSTAND AND AGREE THAT YOU AND CASPAR BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SECTION 11 SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST CASPAR, WHICH ARE ADDRESSED SEPARATELY IN SECTION 13.

IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY CASPAR IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING AN OPT-OUT REQUEST TO THE OPT-OUT ADDRESS LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH CASPAR, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF SMART HOME SERVICES OR CASPAR SOFTWARE TO YOU BY US AND/OR THE USE OF UNIT EQUIPMENT BY YOU AS PERMITTED BY THE TERMS OF THIS AGREEMENT. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.

Our address for sending any opt-out correspondence is:

General Counsel

BrainofT, Inc.

201 Redwood Shores Pkwy,

Redwood City, CA 94065

 

Arbitration Fees.  The allocation and payment of all filing, administration and arbitrator fees will be governed by the JAMS’ rules which limit the amount a consumer is required to pay.  If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.

Arbitration Rules.  The arbitration will be conducted by the JAMS (“JAMS”) under its rules (the “JAMS Rules”) if you are a resident of the United States; since your use of the Smart Home Services, Caspar Software, and/or Unit Equipment has been principally for personal or household use, the JAMS’ procedures for consumer-related disputes including the minimum fairness standards will also apply.  If you are a resident of a country other than the United States, the arbitration will be conducted by the JAMS in San Francisco, California, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in San Francisco, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.  In the event of a conflict or inconsistency between the applicable arbitration rules and this Dispute Resolution and Binding Arbitration Provision, this Dispute Resolution and Binding Arbitration Provision shall govern and control.

The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with at least fifteen years’ experience in consumer and technology transactions and who is also a member of the JAMS’ roster of arbitrators.  If you and we can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the JAMS will pick a neutral arbitrator who meets the qualifications.  The JAMS rules are available at http://www.jamsadr.com, or by calling 1-800-352-5267 from inside the United States or +44 207 583 9808 from outside the United States.

Initiating Arbitration.  To begin an arbitration proceeding, you must follow the procedures specified by the applicable JAMS rules as described on their website at http://www.jamsadr.com.

Time Restriction.  YOU MUST FILE A COMPLAINT WITH JAMS OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.

Arbitration Process.  Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Dispute Resolution and Binding Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed.  Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator.  The arbitration proceedings will be conducted in the English language at a location designated by the JAMS that is the most convenient for you.  

The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable JAMS rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.

In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (e.g. the Federal Arbitration Act). At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the JAMS’ rules or the Federal Arbitration Act.

Recovery and Attorneys’ Fees.  If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The right to attorneys’ fees and expenses discussed above supplements any right to attorneys’ fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys’ fees or costs.  Since your use of the Smart Home Services, Caspar Software, and/or Unit Equipment was principally for personal or household use, neither party will be entitled to any award of punitive or special damages and Caspar waives any right it may have to seek an award of attorneys’ fees and expenses from you in connection with any arbitration of Claims between us.

13—Representative PAGA Waiver.

Notwithstanding any other provision of this Agreement, including the Dispute Resolution and Binding Arbitration Provision, to the fullest extent permitted by law: (1) you and Caspar agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Caspar agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Dispute Resolution and Binding Arbitration Provision or the JAMS Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Dispute Resolution and Binding Arbitration Provision or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Dispute Resolution and Binding Arbitration Provision; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.

Entire Agreement.

This Agreement, the Privacy Policy, and the Order Form constitute the entire agreement between you and Caspar regarding your registration of a Caspar Account and your use of the Smart Home Service and/or any Unit Equipment, superseding any prior agreements between you and Caspar relating to the foregoing. The failure of Caspar to exercise or enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.