Interested in state-of-the-art technology to keep your home fully conditioned? For early access or inquiries, get in touch with us today!
This End User License and Subscription Agreement (“Agreement”) is between you (“Customer”) and Conditioned Air Company of Naples, LLC (“Conditioned Air,” “we” or “us”). This Agreement governs your use of and access to the Conditioned Air My Home Comfort Monitor service, application, and our provision of that service to you. For convenience, we refer to the combination of products, applications, software, and services related to the Conditioned Air My Home Comfort Monitor service that we provide to you as the “System.”
By accepting this Agreement, you agree to be bound by the terms and conditions in this Agreement. You agree that you are the end user of the System and you represent that you are of legal age and are authorized to enter into this Agreement.
THIS AGREEMENT CONTAINS AN AUTOMATIC RENEWAL PROVISION. PLEASE SEE SECTION 1.c. BELOW FOR DETAILS.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND A CLASS ACTION WAIVER. PLEASE SEE SECTION 13 BELOW FOR DETAILS.
a. Subscription for Services. You are subscribing to monitoring services for your HVAC system at a single residential location. Additional subscriptions are required for additional locations. Through the System, in combination with your home WiFi and computer or mobile device, you will be able to view, control, and program your home HVAC system.
b. Fees. You agree to pay the month subscription fee for the monitoring services, enumerated on the scope of services page of this agreement. This fee will be automatically charged to the credit card on file for your account. All payment card information and payment processing are handled by our third-party payment processor. You may incur additional fees from third-party providers in connection with your use of the System, a mobile device, WiFi, internet access and usage, data transmission, video clip or still image transmission, internet usage, SMS, short code or other transmission fees, charges or taxes. You are solely responsible for any additional expense items and they are not included in the fees paid under this Agreement.
c. Renewal. After the initial three-year term, your subscription will automatically renew for additional, consecutive one-month terms unless you cancel the subscription in accordance with Section 1.d.
d. Cancellation. After the initial three-year term, you may cancel your subscription at any time without penalty upon at least 14 calendar days’ prior written notice to Conditioned Air before the next renewal date. For example, if your renewal date is the 15th of each month and you provide cancellation notice on March 10, then your subscription will be cancelled effective at midnight on April 14. You will be charged the subscription fee on March 15 because that you cancelled less than 14 calendar days before March 15.
e. Early Cancellation Fee. If you cancel your subscription before the initial three-year term is complete, you will be charged an early cancellation fee to cover our expenses associated with installation and removal of the equipment. The amount of the cancellation fee is based on how early you terminate your subscription. If you terminate: less than 12 months into the initial 3-year term, the cancellation fee will be $600; at least 12 months but less than 24 months into the initial 3-year term, the cancellation fee will be $400; and at least 24 months, but less than 36 months into the initial 3-year term, the cancellation fee will be $250. Conditioned Air reserves the right, in its sole discretion to waive or reduce the early cancellation fee depending on the details of the specific situation. Notwithstanding the foregoing, under Florida law, you may also cancel this contract if upon a doctor’s order you cannot physically receive the services, or you may cancel the contract if the services cease to be offered as stated in the contract. If you cancel the contract for either of these reasons, Conditioned Air may keep only a portion of the contract price equal to a pro rata portion of the total price representing the proportion of services you used or completed, plus the cost to Conditioned Air of any related goods which you have consumed or retained.
f. Termination By Conditioned Air. Conditioned Air may terminate this Agreement and your use of the System at any time if you fail to comply with any of the terms in this Agreement including, but not limited, to your failure to pay subscription fees, or if we or our service providers stop supporting or licensing the application or stop providing the monitoring services.
g. Equipment Retrieval Upon Cancellation or Termination. Upon cancellation of your subscription or termination of the Agreement, you agree to allow Conditioned Air access to your home during normal business hours to retrieve the My Home Comfort Monitor monitoring equipment. You understand and agree that your failure or refusal to allow Conditioned Air to retrieve the equipment or any damage to the equipment while it is installed at your home may result in additional charges to you to pay for the value of the equipment, which you hereby agree to pay.
h. Refunds. If you terminate your subscription or if Conditioned Air terminates the Agreement because you failed to comply with any term in the Agreement, you will not receive a refund of any subscription fees. Conditioned Air reserves the right to offer a refund, in its sole discretion, for other reasons based on the details of the specific situation.
i. Moves. You understand and agree that if you move you will cancel your subscription, delete your account, and no longer access the System with respect to your prior address. An early cancellation fee may still apply.
a. Grant of Limited License. The System includes software owned by certain third-party licensors, which software protected by United States and international copyright laws and treaties, as well as other intellectual property laws and treaties. The System is licensed to you, not sold. Subject to the terms of this Agreement, Conditioned Air and its licensors grant you a limited, non-exclusive, non- transferable license (without the right to sublicense) to use the System, and its related software, solely for your personal use with your home or business in the continental United States and Canada. The license includes the right to install the System software on your personal computer and/ or mobile device and to use the software in conjunction with your licensed use of the System. All rights of any kind in the System, which are not expressly granted to you in this Agreement, are entirely and exclusively reserved to and by Conditioned Air and its licensors (including the rights to the software object code and source code). You agree that any third-party supplier shall have the right to enforce this Agreement with respect to such third-party’s software or other intellectual property. Upon termination of this Agreement, the license granted hereunder will terminate and you must stop all use of the System immediately.
b. Prohibitions. Unauthorized use, reproduction, copying, and distribution of the System is not permitted and is in violation of United States and international copyright laws and is subject to civil and criminal penalties. You are speciffcally prohibited from:
i. Making or distributing any copies of the System, including but not limited to the software incorporated in it.
ii. Renting, leasing, copying, modifying, or translating the System.
iii. Creating derivative works based on the System.
iv. Altering or removing any copyright or proprietary rights notices or legends appearing on or in the System.
v. Reverse engineering, decompiling or disassembling the System.
vi. Making access to the System available to any third party, making the output generated by or the results of any performance or functional evaluation of the System available to any third parties, and allowing any third party to engage in any activity that you are expressly prohibited from engaging in.
vii. Harvesting, scraping, or collecting information from the System using an automated software tool or manually on a mass basis; this includes, for example, information about other users of the System and information about the offerings, products, services and promotions available on the System.
viii. Using automated means to access the System, or gain unauthorized access to the System or to any account or computer system connected to the System.
ix. “Stream catching” (downloading, storing, or transmitting copies of any streamed content).
x. Obtaining, or attempting to obtain, access to areas of the System that are not intended for access by you.
xi. Flooding the System with requests or otherwise overburdening, disrupting or harming the System.
xii. Restricting, interfering with or inhibiting another user or users from accessing or using the System.
c. Open Source Software. The System may contain open source software that is provided to you under the terms of the open source license agreement or copyright notice accompanying such open source software. As used herein, the term “open source software” means any software, program, module, code, library, database, driver or similar component (or portion thereof) that is royalty free, proprietary software, the use of which requires any contractual obligations by the user to a third party or any license that has been approved by the Open Source Initiative, Free Software Foundation or similar group.
d. Location-Based Services. If you agree to the geo-location feature as part of your System, you agree that you will only use the location-based services in accordance with applicable law and as intended. You acknowledge that neither Conditioned Air nor its licensors and service providers shall have any liability for your usage of the Service that does not comply with law or the intended purpose.
This Agreement shall commence upon your acceptance of the Agreement and shall continue in effect until the date on which your cancellation of the services becomes effective or the date on which the Agreement is terminated by Conditioned Air, whichever comes first. Certain provisions of this Agreement that, by their nature, involve ongoing obligations shall continue in effect after the termination of the Agreement. These provisions include the limitation of liability, mandatory arbitration, class action waiver, and the governing law provisions.
a. Registration. You agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the registration form; and (ii) maintain and promptly update such information.
b. Access. You must create a username and password to access the System. If you are provided with a temporary username and password you must modify the temporary credentials and create your own username and password. You are responsible for maintaining the confidentiality of your password and account and you are fully responsible for all activities that occur under your password, account or any subaccount. You agree to: (i) immediately change your password in the event of any breach of security; (ii) notify Conditioned Air if you have experienced a breach of security; (iii) not share your username and password with any third party; and (iv) ensure that you exit from your account at the end of each session.
c. Access By Others. You acknowledge and agree that Conditioned Air has no responsibility to you with respect to the actions of any additional parties to whom you provide access to the System. You agree that the terms of this Agreement will be binding upon and govern the relationship between Conditioned Air and any third party to whom you grant access to your account or permit to maintain a subaccount. You further agree to take any and all action necessary to ensure compliance with, and enforce the terms of, this Agreement, and to indemnify Conditioned Air and its licensors and service providers for any and all costs, damages, losses or expenses incurred in respect of such third-party user. Neither Conditioned Air nor its licensors or service providers will be liable for any loss or damage arising from your failure to comply with this Section.
d. Suspension or Termination of Access. Conditioned Air has the right to deny access to, and to suspend or terminate your access to, the System, or to any features or portions of the System at any time including, but not limited to, for any violation by you of this Agreement, because of user inactivity or excessive activity, or to secure the System.
e. Emergency Access. If your equipment does not work it may interfere with System network operations. The Federal Communications Commission may require that Conditioned Air have immediate access to your equipment in the event of an emergency. You agree to provide such access as is necessary in an emergency to Conditioned Air, its services providers, and network representatives as required.
f. Availability Dependent on Other Devices and Systems. You acknowledge that the availability of the System is dependent on your computer, mobile device, home wiring, router, power source, your internet service provider, your satellite provider, and your mobile device carrier. You acknowledge that you are responsible for all fees associated with such use and for compliance with any agreements related to such use. You are responsible for ensuring your other home systems and devices are working. Neither Conditioned Air nor its licensors or service providers are responsible or shall be held liable for any issues or problems resulting in whole or in part from your devices or other systems. You further acknowledge that Conditioned Air and any network service providers cannot guarantee the security of any wireless transmission and will not be liable for any lack of security relating to the uses of any service.
Conditioned Air reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the System (or any part thereof) with or without notice. You acknowledge and agree that Conditioned Air and its affiliates, service providers, and suppliers are permitted at any time and without prior notice to remotely push software and firmware updates, enhancements, changes, modifications, additional functionality or bug fixes to the System. You hereby consent to the foregoing and release Conditioned Air and its affiliates, service providers, and suppliers from any and all liability arising from such action.
In the event you (1) utilize a third-party application to access or control your System (e.g., applications that work with Apple’s HomeKit), (2) connect a third-party device to your system, (3) utilize a third-party API, (4) become part of a demand response program, or (5) become part of a third-party connected home or business ecosystem, you acknowledge and agree that in no event will Conditioned Air or its service providers be responsible for the accuracy, functionality, reliability, availability, interoperability, legality or usefulness of such application, device, API, or ecosystem. You also agree that neither Conditioned Air nor its service providers will be liable for any damages that may occur as a result of such use. Use of a third-party application, device, API, or ecosystem is entirely at your own risk and expense. In the event of any of the foregoing uses, we reserve the right to discontinue your right to access and use the System.
a. Apple. The following additional terms apply to you if you use the System on an Apple device (e.g., iPhone, iPad, Mac, etc.).
i. The Agreement is between you and Conditioned Air only, and not with Apple. Conditioned Air and its service providers, not Apple, are solely responsible for the System, including the mobile application and the content thereof. Nothing in this Agreement provide for usage rules that are in conflict with, the Apple Media Services Terms and Conditions.
ii. The license granted to you with respect to the System’s related mobile application is limited to a non-transferable license to use the application on any Apple-branded Products that the you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such application may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
iii. Conditioned Air and its service providers, not Apple, are solely responsible for providing any maintenance and support services with respect to the application, as specified in this Agreement or as required under applicable law. You and we acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the application.
iv. Conditioned Air and its licensors and service providers are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the application to that you. To the maximum extent permitted by applicable law, Apple will have
no other warranty obligation whatsoever with respect to the application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Conditioned Air and its licensors and service providers.
v. Conditioned Air and its licensors and service providers, not Apple, are responsible for addressing any claims by you or any third party relating to the application or the end-user’s possession and/or use of that application, including, but not limited to: (a) product liability claims; (b) any claim that the application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
vi. In the event of any third party claim that the application or you possession and use of that application infringes that third party’s intellectual property rights, we and you (to the extent the infringement is the result of you using the application in a manner not authorized by us), not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
vii. You represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
viii. You must comply with any applicable terms of a third-party agreement to which you have agreed when using the application (e.g., your wireless service provider agreement).
ix. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against the you as a third-party beneficiary thereof.
b. Google. The following additional terms apply to you if you use the System on a Google/Android device or download the application from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“Google”):
i. This Agreement is solely between you and Conditioned Air, and not with Google. Google will not be responsible for and shall have no liability under this Agreement or for any compliance or non-compliance by Conditioned Air, its licensors, or you (or any other user) under this Agreement or the Google Play Terms.
ii. You must contact Conditioned Air or its service providers concerning any defects or performance issues in the application. We and our licensors and service providers are solely responsible for providing, and Google has no obligation provide, maintenance and support for the application.
The system is provided “as is” with no warranties or representations of any kind. Conditioned Air and its service providers expressly disclaim any express or implied warranties, including warranties of non-infringement, merchantability and fitness for a particular purpose. The entire risk arising out of use, performance or non-performance of the system remains with you. To the fullest extent permitted by law, Conditioned Air disclaims any warranties for the security, reliability, timeliness, accuracy, and performance of the system.
Conditioned Air and its third-party service providers have no liability for your WiFi system or other products installed at your premises, or their installation and connection. You expressly understand and agree that Conditioned Air disclaims any and all responsibility or liability for: (1) the accuracy, completeness, legality, reliability, or operability or availability of any content or information or material provided by or accessible through the system; (2) the use of or inability to use the system; (3) the deletion, failure to store, misdelivery, or untimely delivery of any information or material; (4) breaches of security; (5) information communicated through message boards or other forums; (6) any other failure to perform by Conditioned Air and its service providers; and (7) damage, injury, or loss of life or damage to property.
Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you.
There is no guarantee that the System will provide adequate warning in any given situation, or that it will not be compromised or circumvented before it communicates with you or any third party or that it will prevent any personal injury or property loss caused by heat, cold, water damage, humidity or otherwise. Further, there is no guarantee that the System or your mobile device or computer will transmit or receive all signals sent by or to you or any third party regarding the services, including, but not limited to, signals regarding the activation or deactivation of your HVAC system or other systems. You acknowledge that having an HVAC monitoring system does not guarantee that you will not experience a re, frozen pipes, water damage, or other event and is not an insurance policy. Conditioned Air and its service providers will have no liability for any personal injury, property damage or any other loss based on a claim that the System failed to give warning or alert of any type and you hereby release Conditioned Air and its service providers from all liability resulting therefrom.
a. Maximum Liability. If, notwithstanding the warranty disclaimer in Section 8 above, Conditioned Air or its service providers should be found liable, whether directly or indirectly, for any loss, damage or injury arising under this Agreement or otherwise, regardless of cause or origin, on any basis whatsoever, (including but not limited to breach of contract, warranty, negligence, strict liability in tort or otherwise), the total maximum liability is limited to $100.00, which will be the complete and exclusive remedy against Conditioned Air and its service providers.
b. No Liability for Indirect and Other Damages. In no event will Conditioned Air or its principals, shareholders, officers, employees, affiliates, contractors, subsidiaries, service providers, or suppliers, be liable for any indirect, incidental, consequential, or punitive damages whatsoever relating to the use of the System or any component thereof or to your relationship with Conditioned Air, even if Conditioned Air was advised of the possibility of such damages.
c. No Liability for Causes Beyond Conditioned Air’s Control. Under no circumstance will Conditioned Air or its service providers be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond their reasonable control, including, but not limited to, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of god, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat or air conditioning.
Software and technical information delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree that you will not, directly or indirectly, export, re-export, or release the software and technical information or make the System accessible from any location outside the United States.
You agree to hold harmless, indemnify, and defend Conditioned Air, its officers, directors, employees, licensors, and service providers from and against any and all claims, demands, liabilities, losses, damages, costs, and fees (including attorneys’ fees) that arise from your: (1) creation or use of an account; (2) violation of this Agreement; (3) violation of the legal rights of third parties, including rights of privacy or publicity or intellectual property rights; (4) violation of any applicable law, statute, regulation, or ordinance; and (5) your action, inaction, or negligence that results in damage, injury, or death to any person in connection with your use of the System. Your obligation defend under this Agreement will not provide you with the right to control the defense. The indemnified parties reserve the right to control the defense, choose to litigate or to settle a matter, and choose defense counsel.
Please read the following section carefully because it requires you to arbitrate disputes with us and limits the manner in which you can seek relief.
a. Mandatory Arbitration.
i. You and we agree that any dispute, claim or controversy between you and us (including any of Conditioned Air’s parents, subsidiaries, affiliates or related corporations, officers, directors, shareholders, members, employees, agents, or representatives) arising from (i) your use of the System or (ii) this Agreement shall be decided by binding arbitration administered by JAMS (https://www.jamsadr.com/) and conducted pursuant to its Streamlined Arbitration Rules and Procedures. If JAMS is not available or declines to administer the arbitration, the parties shall agree to select an alternative arbitration administrator.
ii. You and we hereby waive any right to litigate such controversies, disputes, or claims in a court of law (except those claims within the jurisdiction of small claims court), and waive any right to a trial by jury to the extent permitted by applicable state and federal law.
iii. You agree that, by entering into this agreement and engaging in interstate commerce by using the App, the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
iv. Exception to Mandatory Arbitration: This mandatory arbitration requirement does not apply to: (1) disputes that are within the jurisdiction of small claims court – you or we may still seek relief from either the small claims court with jurisdiction over the applicable claim or arbitrate the dispute with JAMS; and (2) to intellectual property disputes.
v. Required Pre-Arbitration Notice of Disputes: If you or we intend to seek arbitration of a dispute, then the party that intends to seek arbitration must first send to the other a written notice of dispute (“Notice”). The Notice must include: (1) the party’s name, address and email contact; (2) a description of the nature and basis of the dispute; and (3) an explanation of the specific relief sought, including an approximation of any damages being claimed. If you and we do not reach an agreement to resolve the dispute within 60 calendar days after the Notice is received (provided that it contains all required information), then you or we may commence an arbitration proceeding. Please visit https://www.jamsadr.com/ for more information about how to commence an arbitration.
vi. Arbitration Process: You and we agree that arbitration will involve a single, neutral arbitrator to decide a dispute. You and we will jointly agree upon the arbitrator from a list of potential arbitrators (and in the event we cannot agree, an arbitrator will be appointed by JAMS). We will pay the ling fee for any arbitration we commence, and we further agree that your ling fee for arbitration will be capped at the amount set by JAMS for consumer arbitrations (currently, this amount is $250, but JAMS may change it any time). We generally will pay other fees as required by JAMS, including the case management fee and any professional fees for the arbitrator’s services; however, the arbitrator shall award costs and reasonable attorneys’ fees to the prevailing party, except where prohibited by applicable law. In arbitration you have the right, at your own expense, to be represented by an attorney or representative of your choosing. You and we will have an opportunity to conduct reasonable discovery of non-privileged documents and information relevant to the dispute. You and we will have the right to subpoena witnesses to provide testimony for the arbitration hearing and to cross-examine the other party’s witnesses. You and we agree that any in-person arbitration hearing will be conducted in the United States within 25 miles of the residence location of the System. You and we may also agree to conduct an arbitration hearing via telephone or virtual proceeding or to waive the arbitration hearing and submit the dispute to the arbitrator based on the documentary evidence and written submissions. The arbitrator shall be permitted to award any relief available in a court of law. The arbitrator’s award will consist of a written statement stating the decision on each claim and will provide a concise statement of the essential findings and conclusions on which the award is based. The decision of the arbitrator will be final and binding on both you and us and shall be subject to review only as provided by the Federal Arbitration Act. Any judgment on the award rendered by the arbitrator may be entered by any court of competent jurisdiction.
b. Class Action Waiver.
To the fullest extent permitted by law, you and we each agree that any claims, causes of action, or disputes between the parties shall not be conducted as, or consolidated with, a class action, collective action, or other representative action whether such proceeding is in court, in an arbitration, or in any other forum. The parties expressly waive their right to file a class action, seek relief on a class basis, or participate as a member of a class in any proceeding against the other party. You and we 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. Any proceeding between the parties will be conducted only on an individual basis and shall not be consolidated with or proceed as a class, collective, or representative action for any purpose.
Conditioned Air respects your privacy. Personal information that Conditioned Air receives or collects through its website is handled according to the privacy posted on its website at: https://www.conditionedair.com/privacy-policy/. Personal information you submit or that is otherwise collected through the Resideo mobile application for the My Home Comfort Monitor services is handled in accordance with Resideo’s privacy policy posted at: https://www.resideo.com/us/en/corporate/legal/privacy/english/.
Neither this Agreement nor any of the rights, interests or obligations provided by this Agreement may be transferred or assigned by you without the prior written consent of Conditioned Air. Conditioned Air may assign this Agreement, in whole or in part, in its sole discretion. This Agreement will be binding upon the parties and each of their present and future officers, directors, employees, parents, subsidiaries, agents, successors, assigns, contractors, licensees, affiliates, family members and guests and authorized users.
This Agreement will be governed by and construed according to the laws of the State of Florida, without regard to conflict of law principles. Any claim arising out of the System or the Agreement that is not required to be arbitrated pursuant to the arbitration agreement above shall be brought exclusively in the state or federal courts located in Collier County, Florida. You and we agree that the state or federal courts in Collier County, Florida shall have personal jurisdiction over us for the purpose of litigating all such claims
This Agreement may only be amended, modified, or supplemented by a writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof.
If you have any questions, complaints or claims with respect to the System, please contact us at:
Telephone: (239) 374-1418
Calls may be monitored or recorded for quality assurance
Mail: Conditioned Air Company
Attn: Customer Support
3786 Mercantile Avenue
Naples, Florida 34104
