Last Updated: March 1, 2024
*Prior Version: December 20, 2022*
Plume Design, Inc. (Plume or we) sells, subject to these Plume Terms of Sale (Terms of Sale), Plume Products and Memberships (defined below) to use Plume’s smart-home and enterprise-grade small business Wi-Fi services, all of which are built on self-optimizing Wi-Fi technology.
Plume Design, Inc. has a place of business at 325 Lytton Avenue, Palo Alto, CA 94301, USA.
In these Terms of Sale:
- Customer or You means the purchaser of Plume Products and/or a Membership.
- App Platform means Apple App Store, Google Play, the Amazon Appstore or another online store through which Plume’s Mobile Apps are made available.
- Customer Supplied Devices or CSD means Wi-Fi extenders, OpenSync-enabled gateways and other on-premise Wi-Fi network equipment other than Plume Products acquired by a Customer.
- HomePass Services means the HomePass Mobile App and related services that deliver self-optimizing Wi-Fi technology for home use.
Membership means a service plan subscription for the HomePass Services or WorkPass Services.
- For a description of a HomePass Membership, please see HomePass Description.
- For a description of a WorkPass Membership, please see WorkPass Description.
- Mobile App means Plume’s HomePass mobile application or WorkPass mobile application used in conjunction with the HomePass Services or Work Pass Services. Mobile Apps means both the HomePass Mobile App and WorkPass Mobile App.
- Plume Products means Plume’s SuperPods and related equipment sold in the Store or elsewhere on behalf of Plume.
- Store means Plume’s online store at either HomePass Store or WorkPass Store, respectively.
- WorkPass Services means the WorkPass Mobile App and related services that deliver self-optimizing Wi-Fi technology for small businesses.
PLEASE READ THESE TERMS OF SALE CAREFULLY. BY PLACING AN ORDER, YOU AFFIRM TO PLUME THAT:
- YOU ARE LEGALLY COMPETENT TO ENTER INTO AND BE BOUND BY A CONTRACT.
- YOU UNDERSTAND AND AGREE TO THESE TERMS OF SALE AND, FOR PLUME PRODUCTS SOLD WITHIN THE US AND THE WARRANTY, ALSO INCLUDED IN-BOX WITH PLUME PRODUCTS.
- YOU HAVE READ AND UNDERSTAND THE SAFETY POLICY.
- YOU CONSENT TO THE PLUME PRIVACY POLICY.
IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OF SALE, PLEASE DO NOT MAKE A PURCHASE OF A MEMBERSHIP OR PLUME PRODUCTS.
ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 13.1: YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS OF SALE WILL BE RESOLVED BY BINDING ARBITRATION. BY ACCEPTING THESE TERMS OF SALE, YOU AND PLUME ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
Please see “Agreement to Arbitrate” (Section 13) below for more information.
1. Geographic Restrictions
These Terms of Sale apply to Customers located in the 50 United States (excluding U.S. territories). You are solely responsible for complying with applicable local laws in that the U.S. territories and any other jurisdiction outside the 50 United States. To the fullest extent permitted by law, Plume hereby disclaims all responsibility or liability for any damage or loss caused by purchase and use of Plume Products and Memberships under these Terms of Sale by individuals outside the 50 United States. If you are in a jurisdiction outside the 50 United States that offers Plume Products and Memberships, please also check the Plume Legal Directory.
2. Accounts
To activate a Membership, you must create a Plume account. To create an account, you must: (i) choose a username and password (Account Credentials); (ii) provide true, accurate, current and complete information and maintain that information as accurate, current and complete; and (iii) use appropriate safeguards to maintain the confidentiality and security of Account Credentials. You are solely responsible for using appropriate safeguards to maintain the confidentiality and security of your Account Credentials, and you accept responsibility for all activities that occur using your Account Credentials.
Plume may, in its sole discretion, suspend or terminate Account Credentials and access to the HomePass Services and/or Work Pass Services if account information is inaccurate, out of date or incomplete (or if Plume reasonably believes it is). If you believe that your account is no longer secure, then please immediately notify Plume at support@plume.com.
3. Pricing and Availability
Pricing is confirmed during the order process. You agree to pay the price stated during the ordering process as well as any applicable taxes. Applicable taxes may vary and Plume may not be able to notify you in advance of changes in applicable taxes. You also agree to the billing frequency and automatic renewal terms during the order process. You are responsible for Internet Service fees and similar charges from third-party service providers.
Prices for the Plume Products include standard shipping costs but expedited shipping is subject to an additional charge unless otherwise stated during the order process. Prices and shipping costs are subject to change at any time, but changes will not affect an order already confirmed by an Order Confirmation (defined in Section 4.2.3 below). Your eligibility for promotional pricing or other discounts is determined at the time of the order and is not applied retroactively.
We reserve the right to change the pricing, availability and features of Memberships. Changes will not affect any order already confirmed by an Order Confirmation. If Plume changes the pricing, availability and features of your current Membership, Plume will provide 30 days’ prior notice of the changes in accordance with Section 10. You may cancel your Membership at any time as described in Section 6 below. If you choose to continue your Membership after receiving a notice of changes, you are deemed to accept the modifications to your Membership going forward unless you cancel your Membership as set forth in Section 6 below.
If Plume determines in its sole discretion that a stated price is erroneous, Plume is not obligated to offer you the Plume Product or Membership at that erroneous price. Plume reserves the right to cancel, terminate or not process orders with erroneous pricing. Plume will notify you of the error and you may cancel your order and, if payment was already made, obtain a full refund.
4. Purchases
4.1 Where to Purchase.
4.1.1 HomePass Services. You may purchase a Membership for the HomePass Services through the HomePass Mobile App. This purchase is billed by the App Platform and subject to the App Platform’s terms and conditions (In-App Purchase).
4.1.2 WorkPass Services. You may purchase a Membership for the WorkPass Services through the Store.
4.1.3 Plume Products. You may purchase Plume Products through the Store. The HomePass Mobile App also includes a link to the Store for you to purchase Plume Products.
4.2 Store Purchases.
4.2.1 To make a purchase through the Store (Store Purchase), please select the items you wish to purchase and then follow the on-screen prompts. Plume will acknowledge receipt of your order by an automatically generated email and provide you with an order reference number.
4.2.2 All orders are subject to acceptance. Plume is not obligated to accept your order and may, at our discretion, decline to accept your order. You acknowledge that by clicking on the “Place Order” button, you are agreeing to pay for the Plume Products and/or WorkPass Membership set forth on the order.
4.2.3 If Plume accepts your order, Plume will confirm acceptance by sending you a confirmation email (Order Confirmation). The contract between you and Plume in relation to the Plume Products and WorkPass Memberships set forth on the order (Contract) is formed when Plume sends you the Order Confirmation. The Contract will relate only to the Plume Products and WorkPass Memberships in the Order Confirmation. We are not obligated to supply other Plume Products or WorkPass Memberships that were part of an order until confirmed in an Order Confirmation. Store Purchases of Plume Products are subject to availability.
4.2.4 Plume may cancel an order for any reason - even after providing you with an Order Confirmation - due to limitations on quantities available for purchase, inaccuracies or errors in product descriptions or for fraud prevention. We reserve the right to limit or prohibit an order that, in our sole judgment, appears to be placed by dealers, resellers or distributors. Plume may limit or cancel quantities purchased per person, per email address, per household or per order. These restrictions may include orders placed using same customer account, the same credit card or the same billing or shipping address. If Plume makes a change to or cancels an order, we will notify you by email and/or other contact information provided at the time the order was made and reimburse any amount paid under the order. We reserve the right to discontinue sales of any Plume Product or Membership. ANY ORDER FOR ANY PLUME PRODUCT OR MEMBERSHIP MADE UNDER THESE TERMS OF SALE IS VOID OUTSIDE THE 50 U.S. AND WHERE PROHIBITED OR RESTRICTED BY LAW.
5. Payment
5.1 Plume will process your purchase as promptly as possible. Plume accepts major payment cards (and other payment methods if made available during the purchase process). Plume also accepts payment via our financing partner, Affirm. Payments using Affirm are subject to Affirm’s terms, available here. Learn more about Affirm financing options here.
5.2 By providing payment information to Plume, you agree that the payment information is valid, that you are authorized to use that payment information and that you authorize Plume, Plume’s third-party payment processor, or the App Platform to charge your payment information for the total amount of your order (including applicable taxes and other additional charges due and payable). Unless expressly specified otherwise in these Terms of Sale, all charges are nonrefundable.
5.3 Plume or the applicable third party (such as an App Platform or third-party credit card processor) may seek pre-authorization prior to your purchase to verify that payment method is valid and has the necessary funds or credit available to cover your purchase. Plume’s current third-party credit card processors are Shopify and Stripe. Shopify Terms and Stripe Terms apply to payments through the Store.
5.4 If Plume cannot verify your payment method or if it is invalid or otherwise not accepted, your order and/or Membership will be terminated. If you believe your order or Membership was terminated in error, please contact the App Platform (for your HomePass Membership only) or Plume at orders@plume.com.
5.5 Plume may receive updated credit card information (i.e., a new credit card number or updated expiration date) for your Membership’s automatic renewal payments from your credit card issuer. Your credit card issuer determines whether to provide the updated credit card information to us and Plume is not responsible for this determination. You must contact your credit card issuer to opt out of this process.
6. Memberships and Automatic Renewals
6.1 Memberships are automatically renewing and require recurring payments at the stated frequency (a Subscription Period). WHERE PERMITTED BY APPLICABLE LAW, YOUR MEMBERSHIP WILL CONTINUE UNTIL YOU CANCEL OR UNTIL PLUME DECLINES TO RENEW YOUR MEMBERSHIP. Prior to the end of a Subscription Period, Plume may change Membership pricing, availability or fees as set forth in Section 3.
6.1.1 For HomePass Memberships: The Subscription Period is monthly for HomePass Memberships. For first-time Customers only, the first month of your HomePass Membership (Promotional Period) is provided at no charge. Your Promotional Period begins on the date that you activate your Membership by connecting your account to your Plume Products or CSD.
At the end of the Promotional Period, your Membership automatically converts to automatically renewing monthly paid Membership unless you cancel your Membership in accordance with Section 6.3.
YOUR APP PLATFORM WILL AUTOMATICALLY CHARGE YOUR APP PLATFORM ACCOUNT FOR YOUR MONTHLY HOMEPASS MEMBERSHIP FEE AT THE STATED PRICE (PLUS ANY APPLICABLE TAXES OR OTHER FEES DISCLOSED TO YOU) UP TO 24 HOURS PRIOR TO THE START OF EACH SUBSCRIPTION PERIOD.
The App Platform reports In-App Purchases to Plume. You can cancel your HomePass Membership at any time with the App Platform. Plume cannot initiate, cancel, or refund an In-App Purchase on your behalf. Plume can, however, turn off your HomePass Membership after you cancel through the App Platform.
6.1.2 For WorkPass Memberships: The Subscription Period is 12 months for WorkPass Memberships. You authorize Plume to charge your first Membership fee and applicable taxes when the Order Confirmation for your Membership is issued. You authorize Plume to automatically charge you up to one business day before the end of the then-current Subscription Period for each Subscription Period unless you cancel your Membership in accordance with Section 6.3 below.
6.2 Memberships Are Not Transferrable. Once a Membership is associated with an account (e.g., you associate one Membership for HomePass Services to your account and another Membership to your account for your use of the WorkPass Services in your business), you cannot transfer your Membership to another Plume account, including to a family member’s account. In addition, to use a Plume Product or CSD that was associated with one Plume account with a new or different Plume account, a new or different Membership is required to complete the setup of Plume Products or CSD.
6.3 Membership Cancellation or Termination.
EXCEPT AS OTHERWISE STATED IN THESE TERMS OF SALE OR AS REQUIRED BY APPLICABLE LAW, THE MEMBERSHIP FEE IS NONREFUNDABLE. If you cancel your Membership before the end of a Subscription Period, you are not entitled to receive any refund or credit for the time remaining in the then-current Subscription Period but you will continue to receive Membership benefits until the end of that Subscription Period.
6.3.1 For HomePass Memberships: You must cancel your HomePass Membership with the App Platform. You must cancel before the next Subscription Period starts to avoid charges for that Subscription Period, i.e., cancellation only applies to future charges associated with your Membership as set forth in the App Platform’s terms. You will not receive a refund for the current Subscription Period, but you will continue to receive the Membership benefits until the end of that Subscription Period. If you fail to pay your HomePass Membership fee for any Subscription Period, your HomePass Membership will terminate at the end of the grace period established by the App Platform’s terms (Grace Period). You may reactivate your Membership at any time with the App Platform. Reactivation will occur within approximately 24 hours and will restore the functionality of HomePass Services and your Plume Products in accordance with the Membership that you purchase upon reactivation.
6.3.2 For WorkPass Memberships: You must cancel your WorkPass Membership with Plume by contacting Plume Customer Support. You must cancel at least one business day before the next Subscription Period starts to avoid charges for that Subscription Period, i.e., cancellation only applies to future charges associated with your Membership. You will not receive a refund for the current Subscription Period, but you will continue to receive the Membership benefits until the end of the Subscription Period. Plume may suspend or terminate access to your WorkPass Membership if your WorkPass Membership is not paid when due. In addition to the amount due for the Membership, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees, but only if permitted by applicable law. You may reactivate your WorkPass Membership at any time by contacting Plume Customer Support. Reactivation will restore the functionality of Work Pass Services and Plume Products in accordance with the Membership that you purchase upon reactivation.
6.3.3 Basic Service Mode for HomePass Services: Following a Membership termination expiration in accordance with the applicable Grace Period, the Plume Products and the HomePass Services used in connection with your Membership will function in Basic Mode. When in Basic Mode, your HomePass Network (as defined in the HomePass Service Terms) is static and will not receive performance enhancements and Updates (as defined in the Terms of Service) and the features of the HomePass App are restricted to basic management and viewing of devices connected to the HomePass Network. Plume Products will continue to receive firmware updates in accordance with Plume’s support policies regardless of your HomePass Membership status. Basic Mode is not available if you never activate a Membership. Basic Mode may not be available for Plume Products purchased from a Plume Partner or other third party or for CSD. If you receive your Membership through a Plume Partner, please review your agreement with the Plume Partner for details about Basic Mode.
7. Returns of Plume Products
7.1 If, for any reason, you want to return a Plume Product, you must notify us no later than thirty (30) days after the shipper confirms to Plume the delivery of the Plume Product to the shipping address in your Order Confirmation (Return Period). To initiate a return, you must inform Plume before the end of the Return Period by (i) contacting Plume Customer Support and clearly stating your desire to return the Plume Product, and (iii) completing the return form available here and submitting the form to Plume Customer Support here. Although it will not affect your right to a refund, please include details on how and when you purchased the Plume Product(s) and your reason for returning the Plume Product(s).
7.2 Upon receipt of your completed return form, Plume Customer Support will provide you with a Return Materials Authorization (RMA). Please include your RMA with your return shipment to Plume so that Plume can identify your shipment with a return address. If you purchased a Plume Product from a seller other than Plume, please contact that seller in connection with returns and refunds because Plume cannot process returns and/or refunds for Plume Products not purchased from Plume.
7.3 You have a legal obligation to take reasonable care of the Plume Product(s) in your possession during the Return Period and prior to dispatching your Plume Product(s) back to Plume. If you fail to comply with this obligation, we may have a right to deduct from the refund to which you are otherwise entitled the cost of any deterioration (due, for example, your use of the Plume Products) caused by your handling them in a way which goes beyond what is necessary to establish their nature, characteristics and functioning, as determined in our sole discretion, up to the price of the Plume Product(s).
7.4 To receive a refund, you must return your Plume Product(s) (and any promotional merchandise supplied with the Plume Product(s)) with an RMA no later than fourteen (14) days after the date on which you notify Plume Customer Support in accordance with Sections 7.1 and 7.2. Unless the Plume Product is faulty or not as described, you are responsible for all costs associated with returning the Plume Product to us (including uninstallation and the cost of shipping the Plume Product(s) back to Plume). Plume may, as a courtesy, choose to include return shipping labels at our discretion.
7.5 Plume will refund the price you paid for the Plume Product plus original shipping charges . If you purchase a Plume Product bundle (multiple Plume Products sold together at a discount) (Bundle) and you return only part of the Bundle, we will subtract the total Bundle discount from your refund. If you received any promotional or other discount when you paid, any refund will only reflect the amount you actually paid. Any unused portion of a Promotional Period, if offered, is forfeited.
7.6 We will process the refund due to you as soon as possible and, in any case, within thirty (30) days after the date of receipt by Plume of the returned Plume Product(s). A Plume Product is not eligible for a refund after the Return Period.
7.7 If any Plume Product you ordered is damaged or faulty when delivered to you or has developed a fault, you may have one or more legal remedies available to you, depending on when you make Plume aware of the problem, in accordance with your legal rights. If you believe a Plume Product was delivered damaged or faulty or has developed a fault, you should inform us as soon as possible, preferably in writing, giving your name, address and order reference.
8. Shipping And Delivery
Plume will ship Plume Products in the manner and to the address indicated on the Order Confirmation within the 50 United States. The estimated arrival or delivery date is not a guaranteed delivery date. Refused deliveries will be returned to our warehouse and you must notify Plume to seek a refund in accordance with Section 7.
9. Resale; Title Transfer; Freight Forwarding
Title for Plume Products passes to the purchaser at the time of delivery to the shipment address set forth on the Order Confirmation. Plume and/or the delivery carrier are responsible for any loss or damage that occurs when the Plume Product is in transit from Plume to the shipping address set forth on the Order Confirmation. Plume has no responsibility for damages caused by or during any forwarding from the shipping address on the Order Confirmation to any other location. If Plume provides replacement Plume Products due to damage during shipment to the shipping address, Plume has no obligation to deliver those replacement Plume Products to any location other than the shipping address in your Order Confirmation unless you notify us at the time you first contact us.
10. Modification of These Terms of Sale
10.1 We reserve the right to change these Terms of Sale. Changes to these Terms of Sale will apply to all new orders placed after the “Last Updated” date at the beginning of the Terms of Sale. If a change to these Terms of Sale materially modifies your rights or obligations for a pending order or current Membership (including pricing), we will provide you with 30-days’ prior written notice and require that you accept the modified Terms of Sale. If you do not wish to accept the modified Terms of Sale, you have the right to cancel your Membership prior to the end of that 30-day notice period. Otherwise, the modified Terms of Sale will become effective upon your acceptance or thirty (30) days after notifying you, whichever is earlier.
10.2 Disputes arising under these Terms of Sale will be resolved in accordance with the version of these Terms of Sale that was in effect at the time the dispute arose.
11. Disclaimers; No Warranties
THE DISCLAIMERS IN THIS SECTION 11 APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT WE ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW. TO THE EXTENT DISCLAIMERS CONFLICT WITH APPLICABLE LAW, THE SCOPE AND DURATION OF THE APPLICABLE WARRANTIES IS THE MINIMUM PERMITTED UNDER THAT LAW.
All Plume Products and Memberships are provided on an “as-is” basis unless otherwise noted in the Limited Warranty or the specific terms applicable to the Membership, as applicable. With respect to Plume Products, you may choose whether to make a claim under these Terms of Sale, the Limited Warranty or both but you may not recover twice in respect of the same loss. To initiate a return under the Limited Warranty for your Plume Product, please contact Plume in accordance with the procedures set forth in the Limited Warranty.
PLUME DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE STORE AND ALL CONTENT AVAILABLE THROUGH THE STORE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PLUME DOES NOT WARRANT THAT THE STORE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PLUME DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE STORE. YOU UNDERSTAND AND AGREE THAT YOU ACCESS THE STORE AND APP PLATFORM AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE STORE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
12. Limitation Of Liability; Exclusions
WE DO NOT LIMIT OR EXCLUDE ANY LIABILITY THAT IS PROHIBITED FROM BEING LIMITED OR EXCLUDED UNDER APPLICABLE LAW. TO THE EXTENT ANY LIMITATION OR EXCLUSION IN THESE TERMS OF SALE CONFLICTS WITH APPLICABLE LAW, THE LIABILITY OF Plume AND its affiliates, employees, DIRECTORS and agents (collectively, PLUME ENTITIES) WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 12 APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT WILL THE PLUME ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) THE STORE OR YOUR PURCHASES OF PLUME PRODUCTS OR MEMBERSHIPS THROUGH THE STORE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PLUME ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN THIS SECTION 12 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE (i.e., NOT PER CLAIM) LIABILITY OF THE PLUME ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE THE STORE OR OTHERWISE UNDER THESE TERMS OF SALE, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO PLUME IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO YOUR CLAIM; OR (B) U.S. $100.
EACH PROVISION OF THESE TERMS OF SALE THAT PROVIDES FOR A LIMITATION OR EXCLUSION OF LIABILITY IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF SALE. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF SALE. THE LIMITATIONS AND EXCLUSIONS WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE BUT THEY ARE NOT APPLICABLE WHERE PROHIBITED BY APPLICABLE LAW.
13. Agreement to Arbitrate
13.1 Application. Nothing in these Terms of Sale will be deemed to waive, preclude or otherwise limit the right to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through a government regulator or pursue a statutory remedy only available in an applicable court of law; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) file suit in a court of law to address an intellectual property infringement claim.
13.2 Generally. In the interest of resolving disputes between you and Plume in the most expedient and cost-effective manner, and except as described in Section 13.1, you and Plume agree that every dispute arising in connection with these Terms of Sale will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. These Terms of Sale require you to arbitrate disputes, includes all claims arising out of or relating to any aspect of these Terms of Sale and the HomePass Services or Work Pass Services, 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 these Terms of Sale. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF SALE, YOU AND PLUME ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13.3 Arbitrator. Any arbitration between you and Plume will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules (collectively, AAA Rules) as modified by these Terms of Sale. The AAA Rules and filing forms are available online at adr.org, by calling the AAA at 1-800-778-7879, or by contacting Plume. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
13.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (Notice of Arbitration). Plume’s address for Notice is: Plume Legal, 325 Lytton Ave #200, Palo Alto, CA 94301. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (Demand). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Plume may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Plume must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Plume in settlement of the dispute prior to the award, Plume will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) U.S. $10,000.
13.5 Fees. If you commence arbitration in accordance with these Terms of Sale, Plume will reimburse you for your payment of the filing fee, unless your claim is for more than U.S. $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara, California, but if the claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your 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. In that case, you agree to reimburse Plume for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of how 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. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
13.6 No Class Actions. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST PLUME ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Plume agree in writing 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.
13.7 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 13, you must notify Plume in writing within 30 days after the date that you first accept these Terms of Sale (unless a longer period is required by applicable law). Your written notification must be mailed to Plume at the following address: Plume Legal, 325 Lytton Ave #200, Palo Alto, CA 94301 (Plume Address for Notice of Arbitration). Subject to Section 13.9 below, if you do not notify Plume in accordance with this Section 13.7, you agree to be bound by the arbitration and class-action waiver provisions of these Terms of Sale, including such provisions in any Terms of Sale revised after the date of your first acceptance. Such notification must include: (a) your name, (b) the email address associated with your Plume account, (c) your mailing address, and (d) a statement that you do not wish to resolve disputes with Plume through arbitration. This notification affects these Terms of Sale only; if you previously entered into other arbitration agreements with Plume or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms of Sale shall not affect the other arbitration agreements between you and Plume.
13.8 Updates to this Arbitration Provision. If Plume makes any future change to this arbitration provision, other than a change to Plume’s address for Notice of Arbitration, you may reject the change by sending us written notice within thirty (30) days after the change to the Plume Address for Notice of Arbitration, in which case your account with Plume will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
13.9 Enforceability. If for some reason the entirety of the agreement to arbitrate is deemed invalid, void, or for any reason unenforceable by a competent authority, then you and Plume agree to resolve disputes arising from or related to these Terms of Sale as described in Section 14.2 below. You and Plume agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
14. Miscellaneous
14.1 General Terms. These Terms of Sale, together with any other agreements expressly incorporated by reference into these Terms of Sale, are the entire and exclusive understanding and agreement between you and Plume regarding your purchase from Plume. You may not assign or transfer these Terms of Sale or your rights under these Terms of Sale, in whole or in part, by operation of law or otherwise, without Plume’s prior written consent. We may assign these Terms of Sale at any time without notice or consent. 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 these Terms of Sale, or any provision of these Terms of Sale, be a waiver of any subsequent breach or default or a waiver of the provision itself. If any part of these Terms of Sale is held to be invalid, void or unenforceable for any reason, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. You and Plume are independent contractors in the performance of every part of these Terms of Sale. Nothing in these Terms of Sale is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture or franchise. You and Plume are and will be solely responsible for your/its respective employees and agents and respective labor costs and expenses arising in connection with those employees and agents. Use of section headers in these Terms of Sale is for convenience only and will not have any impact on the interpretation of any provision.
14.2 Governing Law. To extent permitted by applicable law, the laws of the State of California govern these Terms of Sale, without regard to conflict of law principles. You and Plume submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara, California, for resolution of any lawsuit or court proceeding permitted under these Terms of Sale.
14.3 Privacy Policy. Please read the Plume Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. The Plume Privacy Policy is incorporated by this reference into and made a part of these Terms of Sale.
14.4 App Platform Terms. Your use of an App Platform is subject to all additional terms, policies, rules or guidelines applicable to the App Platform.
14.5 Consent to Electronic Communications. The communications between you and Plume may use electronic means. Except when as prohibited by applicable law, you (a) consent to receive communications from Plume in an electronic form (email) about these Terms of Sale to the email address you provide to us; and (b) agree that all terms and conditions, agreements, notices, disclosures and other communications that Plume provides to you by email satisfy any legal requirement that for written such communications.
14.6 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 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 or to receive further information regarding purchases under these Terms of Sale.
14.7 Events outside Plume’s Control. Plume is not responsible for any breach of these Terms of Sale that is beyond Plume’s control, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; pandemic, epidemic, earthquake and other natural disaster. Plume shall take all reasonable actions to minimize the consequences of any such cause.
HOW TO CONTACT PLUME
We understand that these Terms of Sale contain a lot of information to read and understand. If you have questions, please contact Plume at support@plume.com.
The prior version of these Terms of Sale (December 20, 2022) is available here.