Terms of Use

Version 1.2
Last updated: September 1, 2020

These Terms Of Use set forth the general terms and conditions of your use of the Messana websites, applications, and any of its related services and products.

Please read these terms and conditions carefully before purchasing and using our Offerings (defined below).

Contents

  1. Interpretation and definitions
  2. Acknowledgment
  3. Messana Offerings
  4. Installation, test and use of the Messana Control System and Products
  5. Limited license grant
  6. Access to the Services
  7. Automatic Software Updates
  8. Remote Access to Your Control System, Your Data collection and processing
  9. How the Services are to be used
  10. Limitation of Services due to Third-Party Resources
  11. User Accounts
  12. Prohibited uses
  13. Intellectual property rights
  14. Trademarks
  15. Your feedback to Us
  16. Links to Third-Party Resources
  17. Inbound links and social media
  18. Suspension and termination
  19. DMCA Policy
  20. Limitation of liability
  21. Disclaimer of warranty
  22. Additional disclaimers
  23. Governing law
  24. Disputes resolution
  25. For European Union (EU) Users
  26. United States legal compliance
  27. California residence notice
  28. Indemnification
  29. Severability and waiver
  30. Translation interpretation
  31. Assignment
  32. Changes to these Terms Of Use
  33. Equitable relief
  34. Force majeure
  35. How to contact Us

Interpretation and definitions

Interpretation

The words written in quotation marks of which the initial letter is capitalized, have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.

Definitions

For the purposes of these Terms Of Use:

  • Account means a unique account created for You or by You to access our Services or parts of our Services.
  • Affiliate means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
  • Application means any Messana mobile, desktop or web applications (including the Messana App) which may be either (a) preloaded on Messana Products, or (b) downloaded and installed from the Application Store, or (c) executed from the Cloud Service.
  • Application Store means the official digital distribution service operated and developed by Apple Inc. (Apple® AppStore) or Google Inc. (Google Play™) in which the Application can been downloaded.
  • Carrier means mobile service provider.
  • Certified Installer means a licensed, qualified, specialty contractor that has been trained by Messana and appointed and certified by Messana to install and service a Control System or Product.
  • Cloud Service means any data storage, data analytics, and computing services available via: (a) any Messana or third-party remote server, or (b) Your Messana Control System.
  • Control System means the Messana control platform developed for both residential and commercial applications. The control platform is based on and includes: (a) hardware devices (Products) interconnected through a proprietary cloud technology (Cloud Service), and (b) software, either embedded in the devices or distributed separately (Software).
    NOTE: Additional terms and conditions, warranty agreements, rules, and requirements that specifically govern the purchase, installation and use of the Control System are listed in the section “Messana Offerings“. In using our Services in conjunction with the Control System, You agree to all these additional terms. Please read them carefully before using (or continue using) the Services.
  • Device means any device that can access the Services such as computers, smartphones, tablets.
  • End-User refers to the person who ultimately uses the Services, in conjunction with the Control System or the Products, regardless if he/she is the same person who performed the purchase and or own the Control System of the Product.
  • Feedback means feedback, innovations, suggestions, information, material or content sent by You regarding the attributes, performance or features of our Services.
  • ISP means Internet service provider.
  • Messana (in these Terms also referred as to either “Messana Radiant Cooling”, or “We”, or “Us”, or “Our”) means Messana Inc., 4105 Soquel Drive, Ste B., Soquel, CA 95073 and its Affiliates, subsidiaries and divisions.
  • Notifications mean any type of message sent in connection with the Control System or the Products, including but not limiting, local client notification, warnings, alarms, email, text messages, and push-notification.
  • Offerings mean, collectively: (a) the Controls System, (b) the Products and (c) the Services.
  • Products mean any Messana products and device, part of the Control System or standalone, that access, connect or operate with the Services.
    NOTE: Additional terms and conditions, warranty agreements, rules, and requirements that specifically govern the purchase, installation and use of the Products are listed in the section “Messana Offerings“. In using our Services in conjunction with the Products, You agree to all these additional terms. Please read them carefully before using (or continue using) the Services.
  • Remote Access means the ability given to the End-Users, to connect to the Control System from a remote location outside the home local network, once connected to the Internet, via an ISP, and properly configurated with the Cloud Service.
  • Services mean, collectively: (a) the Software, (b) the Website, (c) the Cloud Service, and/or (d) any software, software-as-a-service, content, information, functionality, and other services offered on, or in connection with (a), (b) or (c).
  • Software means, collectively: (a) any Messana, (b) the Messana APIs, (c) any other service, functionality and software programs pre-installed or embedded on any connected Product, or related to the use of the Control Systems.
  • Software Updates means patches, bug fixes, error corrections, updates, upgrades, improvements, or other modifications to the Services.
  • Terms Of Use (also referred as to “Terms”) mean these Terms Of Use that form the entire agreement between You and Messana regarding the use of the Offerings.
  • Third-Party Control Software means any virtual assistants (e.g Amazon Alexa, Apple HomeKit, Google Home, Josh.ai), or home automation platforms (e.g. Creston, Savant, Control4, Lutron, CoolAutomation), or building and energy management system (BMS and EMS), and any technology or standard that allows to interface with the Control System (e.g BACnet, Modbus).
  • Third-Party Resource means any website, software, software-as-a-service, application, plugin, service (including ISP and Carriers and data service), Third-Party Control Software, functionality or content (including data, information, products) provided by a third-party that may be offered, displayed, linked, connected, interfaced, included or made available by the Services.
  • You (in these Terms Of Use also referred to as either “You”, or “Your”, or “User”, or “Users”) means individual visiting the Website or accessing or using the Offerings, or the company, or other legal entity on behalf of which such individual is accessing or using the Offerings, as applicable. You have the authority to bind such entity to these Terms Of Use.
  • Your Data refers to, without any limitation: personal data, settings, configuration backups, performance and diagnostic data, and any other data related to the Control System and information received from the use of the Service.

Acknowledgment

These are the Terms Of Use governing the use of our Offerings and the agreement that operates between You and Messana. Your access to and use of the Offerings is conditioned on Your acceptance of and compliance with these Terms. These Terms Of Use apply to all Users who visit the website or access or use the Offerings and set out the rights and obligations of all Users.

By accessing or using the Offerings You acknowledge that You have read, understood and agreed to be bound by these Terms Of Use. If You disagree, or cannot comply with, any part of these Terms, do not use or access, or continue to access, our Offerings. You acknowledge that these Terms Of Use is a contract between You and Messana, even though it is electronic and is not physically signed by You, and it governs Your use of the Offerings.

Our Offerings are offered and available to Users who are at least 18 years of age or older. By using our Offerings, You represent and warrant that You are at least 18 years of age or older. If You are not at least 18 years of age or older, You must not access or use our Offerings.

Your access to and use of the Offerings is also conditioned on Your acceptance of and compliance with Our Privacy Policy that describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Offerings and tells You about Your privacy rights and how the law protects You. Please carefully read and review our Privacy Policy before using (or continue using) our Offerings.

“YOUR” USE (OR CONTINUED USE) OF THE “OFFERINGS” CONSTITUTES “YOUR” FULL ACCEPTANCE TO “OUR” PRIVACY POLICY AND INDICATES “YOUR” AGREEMENT TO BE BOUND BY THESE “TERMS OF USE” SET FORTH BELOW.

Messana Offerings

The features and functions of the Messana Control System, Products and Services (defined as the Offerings) are described in more detail in the applicable user’s documentation and guidelines available elsewhere on the Website. The Offerings include any additional features and functionality that Messana may, in its sole discretion and from time to time, offer to You. Messana may, in its sole discretion and without notice to You, add, delete or otherwise change features, specifications and functions of the Offerings, at any time. If You are dissatisfied with any such changes, Your sole remedy is to immediately discontinue using such Offering.

Should the change occur by the time You order Your Messana Control System or Product, before the Product is delivered to You, Your remedy is to cancel the order or not to accept the order once it is delivered to You. You acknowledge that certain custom design and or special order are non-changeable, non-cancelable and non-returnable.

Your purchase, delivery and return of the Messana Control System, and/or any other Products, is governed by separate documents, the Global Terms and Conditions of Sales, the Messana Controls Warranty and the Messana Systems Warranty along with installation instructions, operation and maintenance manuals. Furthermore, the use of certain features and functionalities of the Services may be subject to additional terms, rules and requirements which will be available with the Products and third-party controlled devices.

Your access to and use of the Offerings is also conditioned on Your acceptance of and compliance with the Global Terms and Conditions of Sales, the Messana Controls Warranty and the Messana Systems Warranty. Please read and review them all carefully before using (or continue using) our Offerings.

“YOUR” USE (OR CONTINUED USE, AFTER THE ACCEPTANCE OF THESE “TERMS”) OF THE “SERVICES”, IN CONJUNCTION WITH THE MESSANA “CONTROL SYSTEM” AND/OR ANY OTHER “PRODUCTS”, CONSTITUTES “YOUR” FULL ACCEPTANCE TO ALL THESE ADDITIONAL TERMS, RULES, AND REQUIREMENTS, INCLUDING BUT NOT LIMITED TO, THE GLOBAL TERMS AND CONDITIONS OF SALES, THE MESSANA CONTROLS WARRANTY AND THE MESSANA SYSTEMS WARRANTY.

Installation, test and use of the Messana Control System and Products

You are solely responsible for: (a) properly installing and using the Messana Control System or Products pursuant to the applicable manual and instructions, and (b) testing the Messana Control System or Products (and any related sensors, components and peripherals) once installed to confirm that are functioning and communicating as intended and designed, and then (c) regularly test and maintain the Messana Control System or Products after installation.

Furthermore, “You” agree “You” are solely responsible for complying with all applicable federal, state, municipal or local laws, rules, regulations and codes (including building and plumbing and electrical codes) in installing the Messana “Control System” or “Products”. “Messana” is not responsible for damages resulting from improper use, installation, or maintenance.

If the Messana Control System or Products is not properly installed, or if a Product or any of its sensors are outside the detection range or hindered or obstructed by walls, furniture, personal property or other things, You may experience false alarms or detection failures.

Since the Messana Products might be including new cutting-edge technology and/or might by custom designed and fabricated, not all Messana Products are certified and labeled by a National Recognized Testing Laboratories (NRTL). Messana ensures its Products to be safe for its intended use. Any Messana Product that is tested and certified by a NRTL is labeled as so. Before installing the Product, You are entirely responsible for ensuring to comply with any federal, state, municipal or local laws, rules, regulations or codes which expressly deems and requires that only NRTL labeled or listed equipment be installed in a building (residential or commercial).

Shop drawings

Shop drawings (including but not limited to, zoning layouts, panel layouts, mechanical layouts, control layouts, schematics and wiring diagrams) provided by Us, are conceptual and diagrammatic and do not constitute a complete plan and are not intended for use by homeowners or anyone other than a Certified Installer.

Warnings

“MESSANA” MAY INCLUDE PRODUCT WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS, DOCUMENTATION AND SHOP DRAWINGS (INCLUDING BUT NOT LIMITED TO, ZONING LAYOUTS, PANEL LAYOUTS, MECHANICAL LAYOUTS, CONTROL LAYOUTS, SCHEMATICS AND WIRING DIAGRAMS) OF THE MESSANA “CONTROL SYSTEM” AND “PRODUCTS”. AS A CONDITION TO RECEIVING THE “SERVICES”, “YOU” AGREE TO STRICTLY COMPLY WITH ALL WARNINGS AND INSTRUCTIONS ON THE PACKAGING, LABELS, DOCUMENTATION AND SHOP DRAWINGS AND ANY UPDATES THAT “MESSANA” PROVIDES TO “YOU”.

Certified installers

We required that Your Messana Control System (or any Product) is installed solely by a Certified Installer in Your area of Your choice. You are solely responsible to find and select a competent Certified Installer that meets Your expectations. If in Your area there is not a Certified Installer that meets Your needs, it is Your responsibility to require Your trusted contractor to become a Messana Certified Installer. Messana may offer free certification and training programs.

Should You elect to use a non-Certified Installer, You must acknowledge that warranties will not apply, as set forth in the Messana Controls Warranty and in the Messana Systems Warranty agreements.

Certified Installers and installers are independent contractors and service providers, and not employees or agents of Messana. Accordingly, (a) Messana makes no representations or warranties with respect to installers or their services and is in no way responsible for their acts or omissions, and (b) installers have no right to bind Messana legally or otherwise make commitments on behalf of Messana. Such Installer may offer additional installation, configuration or ongoing maintenance services. Any disputes, which may arise between You and Your Installer, are to be resolved between You and Your Installer.

Insurance

THE PRICE OF THE MESSANA “CONTROL SYSTEM” IS UNRELATED TO THE VALUE OF PROPERTY LOCATED ON OR NEAR THE PREMISES AT WHICH THE “CONTROL SYSTEM” IS LOCATED. NO PORTION OF THE PURCHASE PRICE IS FOR INSURANCE OR SHALL BE DEEMED OR CONSIDERED INSURANCE PREMIUMS. “YOU” ACKNOWLEDGE AND AGREE THAT “MESSANA” IS NOT AN INSURER AND SHALL NOT PROVIDE INSURANCE COVERAGE AGAINST ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE “SERVICES”. TO THE EXTENT “YOU” WISH TO HAVE ANY INSURANCE COVERAGE FOR LOSSES OR DEMAGES, IT IS “YOUR” RESPONSIBILITY TO PROCURE AND MAINTAIN SEPARATE INSURANCE POLICIES FROM AN INSURANCE COMPANY OR COMPANIES, SOLELY AT “YOUR” COST AND EXPENSE.

If the Products contain batteries, please check batteries in the Products regularly. You are solely responsible for replacing any batteries for the Products, when necessary. You understand and agree that the Products may not properly function if the batteries need to be replaced.

Limited license grant

As part of the Messana Control System, in accordance with the terms and conditions of these Terms Of Use and any applicable limitations on the number of Devices and payment of any applicable license fees or service subscription, Messana hereby grants You a limited, personal, worldwide (subject to law), non-transferable, non-exclusive license (without the right to sublicense) to (a) access and use the Services, for the sole purpose of controlling and monitoring a Messana Control System, or standalone Products installed in Your property or otherwise accessing a service explicitly provided by Messana for Your use (“Purpose”), (b) download, install, and execute the Software on any Device under Your control, solely for the Purpose.

You are responsible for ensuring Your Device meets the minimum requirements of the Software.

Restrictions

You agree not to engage in, attempt to engage in, or permit or assist others in engaging in, any of the following prohibited activities: (a) use any software, script, code, device, crawler, robot, or other means not provided by Us to access the Service; (b) circumvent, disable, or otherwise interfere with security-related features on the Service; (c) edit, alter, modify, adapt, translate or otherwise change the whole or any part of the Service software (d) permit the whole or any part of the Service to be combined with or become incorporated in any other software; (e) reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Service; (f) access or use the Services in any manner that may damage, disable, unduly burden, or impair any part of the Service, or any servers or networks connected to the Service; (g) reproduce, copy, distribute, resell or otherwise use the Services for any commercial purpose, unless You are an authorized sales representative in selling our Offerings, or You are using our Services as part of a paid subscription; (h) allow any third-party to use the Software on behalf of or for the benefit of any third-party.

Access to the Services

As of the date hereof, our Services are currently provided to You free-of-charge, but Messana reserves the right to begin charge for the Services or any portion of the Services, in the future. In such case, We will notify You and request Your consent before charging for selected services.

Messana reserves the right to suspend, withdraw or amend our Services and support for our Services, in Our sole discretion without notice. We will not be liable if, for any reason, all or any part of the Services are unavailable at any time or for any period. From time to time, to allow for repairs, maintenance, updates, introduction of new features or any circumstance deemed reasonably necessary by Us, We may restrict access to some parts of the Service, or the entire Services, to Users, including registered Users, without notice. You acknowledge these limitations and agree that You are not entitled to any refund on fees paid or subscriptions charges, as a result of such suspension of our Services.

Automatic Software Updates

Messana may, but is not obligated to, develop Software Updates from time to time. You agree that such Software Updates may be automatically installed without any additional notice to or consent from You. Messana may further provide You with certain Software Updates that You are required to install, and You agree to install any such Software Updates promptly after they are provided to You.

Furthermore, You acknowledge that, in certain instances, You may be required to manually install Software Upgrades to continue using our Services and You agree to promptly install any Software Updates Messana provides.

IF “YOU” DO NOT AGREE TO RECEIVE AND INSTALL SOFTWARE UPDATES FOR A PARTICULAR “OFFERING”, YOUR SOLE REMEDY IS IMMEDIATELY DISCONTINUE USING SUCH “OFFERING”.

Any Software Updates provided, shall be subject to all the terms and conditions of these Terms Of Use.

Remote Access to Your Control System, Your Data collection and processing

To provide End-Users with Remote Access and allow Us to offer remote assistance and monitoring services, improve our Offerings, and enhance the end‐user experience, a Control System transmits and receives data through the Cloud Service, and We access, receives, process, store and utilize end-user data.

You acknowledge, agree and grant to Messana the right, to the extent permitted by applicable law, to access, store, process, retrieve, and disclose Your Data for the following purposes: (a) allowing You to access to the Control System remotely (outside Your home local network), (b) providing the Services to You, (c) diagnosing and troubleshooting Your Control System, (d) providing technical support and assistance, (e) providing optional monitoring services, (f) analyzing, optimizing, maintaining and improving Your Control System; (g) installing Software Updates; (h) allowing Us to improve our Products and Control Systems and (i) complying with contractual, legal, or governmental terms and requirements.

Furthermore, You acknowledge and agree that while using Your Control System, Messana support personnel will have the ability to view, access all Your Data and change Your Control System configuration and settings, including but not limited to, User information and preference, zone names, postal and email addresses, phone numbers, setpoints, schedules, switches, status, network settings, and more (collectively referred to as, “Settings”). Messana ensures that personnel authorized to process personal data have committed themselves to confidentiality or are under appropriate statutory obligation of confidentiality and will make change on Your Settings only and exclusively upon request by You, or Your installer or an authorized representative.

The privacy of Your Data is subject to the Messana Privacy Terms.

The Remote Access requires the use of, and You are responsible for, an always-on broadband Internet connection. Messana is not responsible for and does not make any assurances about the availability or functionality of any broadband Internet connection. Network protection for Your Internet connection is strongly advised to protect Your Control System against viruses and other types of harm.
You are responsible for any service charges for Your Internet connection.

You may elect to disable the Remote Access at any time, by changing the setting in Your Account or by sending a request by email to legal@radiantcooling.com, but You must understand and acknowledge that disabling the access to Your Data, will prevent some features of the Application from functioning, and will limit the Messana’s ability to provide the services (a), (b), (c), (d), (e), (f), (g), (h) and (i) mentioned above. Once Your Control System is disconnected, should You decide in the future to restore the Remote Access, a $250 reconnection fee will be charged.

How the Services are to be used

Intended use

The Messana Services are intended to be accessed and used for non-time-critical function, information and/or control and monitoring of the Control System or standalone Products. While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Messana control, including Wi-Fi intermittency, ISP and Carrier outage, among others.

“YOU” ACKNOWLEDGE THESE LIMITATIONS AND AGREE THAT “MESSANA” IS NOT RESPONSIBLE FOR ANY DAMAGES ALLEGEDLY CAUSED BY THE FAILURE OR DELAY OF THE SERVICES TO REFLECT CURRENT STATUS OR PROVIDE “NOTIFICATIONS”.

No life-safety or critical uses

You acknowledge that the Messana Services are not certified for emergency response. Messana makes no warranty or representation that use of the Services with any Third-Party Resources will affect or increase any level of safety.

You understand that (a) the Services are not a third-party monitored emergency notification system; (b) Messana does not monitor Your devices for any dangerous conditions; (c) Messana does not (for any Product) guarantee that any emergency authorities will be contacted or dispatched to Your home in the event of an emergency; (d) each Product, as well as any connected equipment, is not certified or intended for use for emergency response or to operate emergency safety devices; (e) the Messana customer support cannot be considered a lifesaving solution for people at risk in the home or elsewhere, and they are no substitute for emergency services; (f) all life-threatening and emergency events should be directed to the appropriate emergency response services.

“YOU” UNDERSTAND THAT, THE “SERVICES”, THE “CONTROL SYSTEM” AND THE “PRODUCTS”, WHETHER STANDING ALONE OR INTERFACED WITH THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM AND “YOU” AGREE THAT “YOU” WILL NOT RELY ON THE “SERVICES” FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. FURTHER, “YOU” UNDERSTAND THAT UNDER NO CIRCUMSTANCES WILL “MESSANA” DISPATCH EMERGENCY SERVICES TO “YOUR” HOME IN THE EVENT OF AN EMERGENCY.

Reliability of Services and Notifications

You acknowledge that the Services, including Remote Access and Notifications, are not intended to be 100% reliable and 100% available.

Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your home network, enabled Devices, ISPs, or Carriers, for which Messana is not responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, may result in the Services being unreliable or unavailable. We cannot and do not guarantee that You will receive Notifications in any given time or at all.

“YOU” AGREE THAT “YOU” WILL NOT RELY ON THE “SERVICES” FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. “NOTIFICATIONS” (INCLUDING STATUS, WARNINGS AND ALARMS OF THE MESSANA “CONTROL SYSTEM”) ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM.

There is no way for Messana to provide specific information relating to a situation in your home or elsewhere. You acknowledge that it is Your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of Your situation.

System requirements

The Services will not be accessible without: (a) an active Account; (b) a working and reliable home network connected; (c) a Messana Control System connected via Ethernet to the home network; (c) a working Device connected to the home network (d) a working Wi-Fi connection in Your home that is positioned to communicate reliably with Your Devices (required from some functionality); (e) always-on broadband Internet access in Your home; and (f) other system elements that may be specified by Messana.

It is Your responsibility to ensure that You have all required system elements and that they are compatible and properly configured. You acknowledge that the Control System may not work as described when the requirements and compatibility have not been met.

Performance, comfort and energy saving

Unless explicitly promised and stated in writing in a “performance guarantee agreement”, Messana does not guarantee or promise any specific level of system performance, comfort, energy saving or other monetary benefit from the use of the Control System or any feature of the Services. Actual performance, comfort, energy savings and monetary benefits vary with factors beyond Messana control or knowledge, including but not limited to, actual heating and cooling loads, internal loads, outdoor conditions, solar gain, shade, window performance, actual building envelop, and other factors.

From time to time, Messana may use Your Data and the Services to provide You with information that is unique to Your Control System and suggest an opportunity to improve Your performance, comfort level, save money on energy bills if You adopt suggestions or features of the Services. We do this to highlight an opportunity based on Our analysis and Your Data. You acknowledge and agree that these suggestions and promotions are not a guarantee of actual improvement of performance, comfort or saving, and You agree not to seek monetary or other remedies from Messana if Your performance, comfort levels and savings differ from Your expectation.

Limitation of Services due to Third-Party Resources

Messana Services rely on or interoperate with Third-Party Resources. These Third-Party Resources are beyond Messana’s control, but their operation may impact or be impacted by the use and reliability of the Messana Services. You acknowledge and agree that: (a) the use and availability of the Services is dependent on Third-Party Resource’s vendors and providers, (b) these Third-Party Resources may not operate in a reliable manner 100% of the time, and they may impact the way that the Messana Services operate, and (c) Messana is not responsible for damages and losses due to the operation of these Third-Party Resources.

Third-Party service providers used by Messana

You acknowledge that Messana uses third-party service providers to enable some aspects and functionality of the Services, including but not limited to, data storage, synchronization, communication, and notifications through mobile operating system vendors and Carriers.

You acknowledge that third-party service providers are part of the Third-Party Resources.

Equipment, ISP and Carrier

You acknowledge that the availability of the Services is dependent on (a) Your computer, mobile device, (c) home wiring, and installation, (d) home router, modem, home network, Wi-Fi, and other related equipment, (e) Your ISP, and (f) Your Carrier. You acknowledge that You are responsible for all fees charged by Your ISP and Carrier in connection with Your use of the Services. You also acknowledge and agree that You are solely responsible for (a) compliance with all applicable agreements, terms of use/service, and other policies of Your ISP and Carrier and (b) You shall be solely responsible for all disputes with Your ISP and Carrier.

Third-Party plugins and services that work with the Services

You acknowledge and agree that, with the sole purpose of providing an enhanced end-user experience and improve the Services, Messana makes available to its users, certain third-party plugins and services to provide additional functionality, features or content including but not limited to, Internet weather forecast and conditions, APIs. These third-party plugins and services are not Messana plugins and services and You agree that Messana is not responsible for damages or loss that may be caused by them.

Furthermore, the use of these plugins and services may provide to third-party providers Your private information, including but not limited to, Approximate Geographic Location or IP address. The privacy of Your data is subject to their own privacy policies, which are not under the control of Messana.

You acknowledge that third-party plugins and services are part of the Third-Party Resources.

Third-Party open source software

Any open source software that may be provided as part of or in connection with the Services is licensed under the terms of the applicable third-party open source license, which can be found in any applicable “readme” file, documentation or other materials (hereafter, “Open Source Terms”). Copyrights to the open source software are held by copyright holders indicated in the Open Source Terms. Any terms of these Terms Of Use that conflict with the Open Source Terms of any license agreements for open source software will not apply to such open source software.
Any other open source software downloaded or otherwise obtained in connection with Your use of the Services is done so at Your own discretion and risk, and You will be solely responsible for and hereby waive any and all claims and causes of action with respect to any damage to Your computer system, internet access, download or display device, or loss of Your Data that results from the download of any such third-party open source software.

Third-Party Control Software

You acknowledge that the Messana Control System may allow interfacing with Third-Party Control Software.

You agree only to use Third-Party Control Software compatible with our Control System. The usage of non-compatible Third-Party Control Software or other connected devices that are not designated by Us as being compatible may not work with the Control System and may cause the Control System to have malfunctions or limited features or functionality or may otherwise cause errors to other connected devices.

You acknowledge that Third-Party Control Software are part of the Third-Party Resources.

Application Stores

You acknowledge and agree that the Messana Application must be solely downloaded from the official Application Store. Downloading the Application from any unofficial third-party store is expressly prohibited. Third-party app stores may not apply the same level of security and privacy.

You acknowledge and agree that the availability of the Application is dependent on the Application Store from which You download the Application. You acknowledge that these Terms are between You and Messana and not with an Application Store. Each Application Store may have its own terms and conditions to which You must agree before downloading the Application from it. You agree to comply with, and Your license to use the Application is conditioned upon Your compliance with, such Application Store terms and conditions. To the extent such other terms and conditions from such Application Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.

If You use the Application for iOS available via the Apple, Inc. App Store, but the following additional terms also apply to the Application when is downloaded by the Apple, Inc. App Store: (a) You acknowledge and agree that these Terms of Use are concluded between You and Messana only, and not with Apple, and that Apple is not responsible for the Application or the content thereof; (b) the Application is licensed to You on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for Your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services; (c) You will only use the Application in connection with an Apple device that You own or control; (d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application; (e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, You may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to You will be to refund to You the purchase price, if any, of the Application; (f) You acknowledge and agree that Messana, and not Apple, is responsible for addressing any claims You or any third-party may have in relation to the Application; (g) You acknowledge and agree that, in the event of any third-party claim that the Application or Your possession and use of the Application infringes that third-party’s intellectual property rights, Messana, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such infringement claim to the extend require by these Terms; (h) You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties; (i) You acknowledge and agree that, in Your use of the Application, You will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and (l) both You and Messana acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as the third-party beneficiary hereof.

Release regarding third-party

Messana is not responsible for Third-Party Resources, Application Stores, Third-Party products and equipment, referred vendors, ISPs, and Carriers.

You hereby release Messana and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to Your interactions with such third-parties and their products and services.

User Accounts

When You create an Account with Us, You are fully responsible for (a) all activities that occur under the Account and any other actions taken in connection with it, (b) maintaining the security of Your Account, (c) providing Us information that is accurate, complete, and current at all times. Failure to do so, constitutes a breach of the Terms, which may result in immediate termination of Your Account on our Services. We may monitor and review new accounts before You may sign in and start using the Services.
You are responsible for safeguarding the password that You use to access the Services and for any activities or actions under Your password, whether Your password is with our Services or a third-party service.

You agree not to disclose Your password to any third-party. You must immediately notify Us of any unauthorized uses of Your Account or any other breaches of security. We will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than You without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

We may suspend, disable, or delete Your Account (or any part thereof) if we determine that You have violated any provision of these Terms or that Your conduct or content would tend to damage Our reputation and goodwill. If we delete Your Account for the foregoing reasons, You may not re-register for our Services. We may block Your email address and Internet protocol address to prevent further registration.

Once an Account linked to a Control System has been cancelled, to re-activate a cancelled account a $250 re-activation fee may apply.

Prohibited uses

In addition to other terms as set forth in these Terms Of Use, You are prohibited from using the Services: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate Our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services, third-party products and services, or the Internet; (h) to spam, phish, pharm, pretext, spider, crawl, or scrape; (i) for any obscene or immoral purpose; or (j) to interfere with or circumvent the security features of the Services, the Products, third-party products and services, or the Internet.

We reserve the right to terminate Your use of the Services for violating any of the prohibited uses.

Intellectual property rights

The Services and its original content (excluding content provided by You or other users), features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) are and will remain the exclusive property of the Messana and its licensors, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

Trademarks

All trademarks, service marks, graphics and logos used in connection with the Offerings, are trademarks or registered trademarks of Messana or its licensors. Other trademarks, service marks, graphics and logos used in connection with the Services may be the trademarks of other third parties. Your use of the Services grants You no right or license to reproduce or otherwise use any of Messana or third-party trademarks.

Your feedback to Us

Messana welcomes Your Feedback. By transmitting any Feedback to Us, You represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third-party (including, without limitation, patents, copyrights, or trademark rights) and that You have all rights necessary to convey to Us and enable Us to use such Feedback. In addition, any Feedback will be deemed to include a royalty-free, perpetual, irrevocable, transferable, and non-exclusive right and license for Messana to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and You waive any claim to the contrary.

Links to Third-Party Resources

Although, our Services may display or include or contain links to Third-Party Resources that are not owned or controlled by Us, We are not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with any Third-Party Resources, unless specifically stated in these Terms Of Use.

Messana has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any Third-Party Resources. Furthermore, We are not responsible for examining or evaluating, and We do not warrant the offerings of, any businesses or individuals or the content of their resources.

You further acknowledge and agree that Messana shall not be responsible or liable, directly or indirectly, for the content or for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any Third-Party Resources.

We strongly advise You to carefully review the legal statements and other conditions of use of any resource which You access through a link in the Services. Your linking to any other off-site resources is at Your own risk. Any Third-Party Resources downloaded or linked to or otherwise obtained in connection with Your use of the Services is done so at Your own discretion and risk, and You will be solely responsible for and hereby waive any and all claims and causes of action with respect to any damage to Your computer system, internet access, download or display device, or loss of Your Data that results from the download of any such Third-party Resource.

Inbound links and social media

You may link to our Website, provided You do so in a way that is fair and legal and does not damage Our reputation or take advantage of it. You must not establish a link to our Website in such a way as to suggest any form of association with Us or approval or endorsement on Our part where none exists. You must not establish a link to our Website in any website that is not owned by You.

Our Services may provide certain social media features that enable You to: (a) link from Your own or certain third-party websites to certain content on our Services; (b) send e-mails or other communications with certain content or links to specific content on our Services; (c) cause limited portions of content on the Services to be displayed or appear to be displayed on Your own or certain third-party websites.
You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, You must not: (a) cause the Services or portions of them to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site; (b) link to any part of our Website other than the homepage, unless expressly agreed in writing by Us; (c) otherwise take any action with respect to the materials on our Services that is inconsistent with any other provision of these Terms Of Use.
You agree to cooperate with Us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in Our discretion.
If You wish to make any use of content on our Website other than that set out above, please contact Us.

Suspension and termination

These Terms Of Use will remain in full force and effect so long as You continue to access or use our Services, or until terminated in accordance with the provisions of these Terms Of Use.

We may terminate or suspend Your Account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if You breach these Terms Of Use.

Upon termination, Your right to use the Services will cease immediately. If You wish to terminate Your Account, You may simply discontinue using the Services.

DMCA Policy

This Digital Millennium Copyright Act policy (“DCMA Policy”) applies to the Services and outlines how Messana addresses copyright infringement notifications and how You may submit a copyright infringement complaint.

Protection of intellectual property is of utmost importance to Us and we ask Our users and their authorized agents to do the same. It is Our policy to expeditiously respond to clear notifications of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (“DMCA”) of 1998, the text of which can be found at the U.S. Copyright Office website.

What to consider before submitting a copyright complaint

Before submitting a copyright complaint to Us, consider whether the use could be considered fair use. Fair use states that brief excerpts of copyrighted material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder. If You have considered fair use, and You still wish to continue with a copyright complaint, You may want to first reach out to the user in question to see if You can resolve the matter directly with the user.

Please note that under 17 U.S.C. § 512(f), You may be liable for any damages, including costs and attorneys’ fees incurred by Us or Our users, if You knowingly misrepresent that the material or activity is infringing. If You are unsure whether the material You are reporting is in fact infringing, You may wish to contact an attorney before filing a notification with Us.

We may, at Our discretion or as required by law, share a copy of Your notification or counter-notification with third-parties. This may include sharing the information with the account holder engaged in the allegedly infringing activity or for publication. If You are concerned about Your information being forwarded, You may wish to use an agent to report infringing material for You.

Notifications of infringement

If You are a copyright owner or an agent thereof, and You believe that any material available on our Services infringes Your copyrights, then You may submit a written copyright infringement notification (“Notification”) using the contact details below pursuant to the DMCA by providing Us with the following information:

  • Identification of the copyrighted work that You claim has been infringed, or, if multiple copyrighted works are covered by this Notification, You may provide a representative list of the copyrighted works that You claim have been infringed.
  • Identification of the infringing material and information You claim is infringing (or the subject of infringing activity), including at a minimum, if applicable, the URL or URLs of the web pages where the allegedly infringing material may be found.
  • Information reasonably sufficient to permit Us to contact You, such as an address, telephone number, and, if available, an e-mail address.
  • A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, the copyright owner’s agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury that You are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • A physical or electronic signature (typing Your full name will suffice) of the copyright owner or a person authorized to act on their behalf.

All such Notifications must comply with the DMCA requirements. You may refer to a DMCA takedown notice generator or other similar services to avoid making mistake and ensure compliance of Your Notification.

Filing a DMCA complaint is the start of a pre-defined legal process. Your complaint will be reviewed for accuracy, validity, and completeness. If Your complaint has satisfied these requirements, Our response may include the removal or restriction of access to allegedly infringing material as well as a permanent termination of repeat infringers’ Accounts. We may also require a court order from a court of competent jurisdiction, as determined by Us in Our sole discretion, before We take any action. A backup of the terminated Account’s data may be requested, however it may be subject to certain penalty fees imposed. The final penalty fee will be determined by the severity and frequency of the violations.

If We remove or restrict access to materials or terminate an Account in response to a Notification of alleged infringement, We will make a good faith effort to contact the affected user with information concerning the removal or restriction of access, which may include a full copy of Your Notification (including Your name, address, phone, and email address), along with instructions for filing a counter-notification.

Counter-notifications

A user who receives a copyright infringement Notification may make a counter-Notification pursuant to sections 512(g)(2) and (3) of the US Copyright Act. If You receive a copyright infringement Notification, it means that the material described in the Notification has been removed from our Services or access to the material has been restricted. Please take the time to read through the Notification, which includes information on the Notification we received as well as instructions on how to file a counter-notifications.

To file a counter-notification with Us, You must provide a written communication that sets out the following information:

  • Identification of the material that has been removed or to which access has been restricted and the location at which the material appeared before it was removed or access to it was restricted.
  • Information reasonably sufficient to permit Us to contact You, such as an address, telephone number, and, if available, an e-mail address.
  • IA statement under penalty of perjury that You have a good faith belief that the material was removed or restricted as a result of mistake or misidentification of the material to be removed or restricted.
  • IA statement that You consent to the jurisdiction of the federal district court for the judicial district in which the address is located (or if You are outside of the United States, that You consent to the jurisdiction of any judicial district in which the service provider may be found), and that You will accept service of process from the person or company who provided the original infringement notification.
  • IA physical or electronic signature (typing Your full name will suffice) of the copyright owner or a person authorized to act on their behalf.

Please note that You may be liable for, including costs and attorneys’ fees incurred by Us or Our users, if You knowingly misrepresent that the material or activity is not infringing the copyrights of others or that the material or activity was removed or restricted by mistake or misidentification. Accordingly, if You are not sure whether certain material infringes the copyrights of others or that the material or activity was removed or restricted by mistake or misidentification, You may wish to contact an attorney before filing a counter-notification.

Notwithstanding anything to the contrary contained in any portion of this DCMA Policy, Messana reserves the right to take no action upon receipt of a DMCA copyright infringement notification if it fails to comply with all the requirements of the DMCA for such notifications.

If You would like to notify Us of the infringing material or activity, You may send an email to legal@radiantcooling.com

Limitation of liability

To the maximum extent permitted by applicable law, in no event shall “Messana” and its licensors, dealers, suppliers, agent, employee, officer, or director be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to: (a) damages for loss of profits, (b) loss of data or other information, (d) for business interruption, (e) for personal injury and (f) loss of privacy arising out of or in any way related to the use of or inability to use the “Services”, “Third-Party Resources”, or otherwise in connection with any provision of these “Terms”), even if “Messana” or any of its licensors, dealers, suppliers or agents has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.

Notwithstanding any damages that “You” might incur, “You” agree that the entire liability of “Messana”, and its licensors, dealers, suppliers and agents, under any provision of these “Terms” and “Your” exclusive remedy for all of the foregoing, will be limited to the greater of: (a) the amount actually paid by “You” for use of the “Services”, for the past six months period prior to the first event or occurrence giving rise to such liability, or (b) one hundred (100) United State Dollars.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitation of liability for incidental or consequential damages or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

Disclaimer of warranty

A specific, written limited product warranty is provided with certain Products. If the warranty terms of such specific, written limited product warranty applicable to a Product expressly conflict with these Terms, the relevant provision of these Terms will govern the Services, and the specific, written limited product warranty provided with the Product will govern for the other functionality of the Product.

“You” acknowledge and agree that the “Services” are provided to “You” “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, “Messana”, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the “Services”, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice.

Without limiting the foregoing, neither “Messana” nor any of Messana’s provider makes any representation or warranty of any kind, express or implied: (a) as to the operation or availability of the “Services”, or the information, content, and materials or “products” included thereon; (b) that the “Services” will be uninterrupted or error-free; (c) as to the accuracy, reliability, or currency of any information or content provided through the “Services”; or (d) that the “Services”, its servers, the content, or e-mails sent from or on behalf of “Messana” are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

Some jurisdictions do not allow the exclusion of certain types of warranties or limitation of liability for incidental or consequential damages or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

Additional disclaimers

Once a Controls System or a Product is properly installed and setup, by using our Services, You are given the opportunity to make adjustments in the configuration by changing some settings, including the default parameters. Such change You make may cause non-recommended or unintended operation or non-operation of the Control System or Products and any connected equipment or systems.

You acknowledge and agree to assume all risks and liability for any damages and losses arising from, connected to or resulting from such change You make to the settings of the Controls System or Products.

Governing law

The formation, interpretation, and performance of this in these Terms Of Use and any disputes arising out of it shall be governed by the substantive and procedural laws of California, United States without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of United States.

The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms Of Use.

Disputes resolution

If You have any concern or dispute about the Services, You agree to first try to resolve the dispute informally by contacting Us.

You agree that any controversy or claim arising out of or relating to these Terms, or the breach thereof, shall be settled by binding arbitration conducted in Santa Cruz, California by a single arbitrator mutually agreed by the parties and conducted by and in accordance with the rules of JAMS (Judicial Arbitration & Mediation Service). Judgment on the award rendered by the arbitrator may be entered in a court having jurisdiction thereof located in Santa Cruz County, California, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues.

Furthermore, You hereby agree to the following: (a) You waive any right to a jury trial in any proceeding arising out of or related to these Terms Of Use; (b) You shall resolve any disputes, claims or controversies on an individual basis, and that any claims brought under these Terms Of Use in connection with the Services will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding; (c) You shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third-party arising under these Terms of Service or in connection with the Service; (d) regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Your use of the Services must be filed by You within one (1) year after such claim or cause of action arose or be forever barred.

For European Union (EU) Users

If You are a European Union consumer, You will benefit from any mandatory provisions of the law of the country in which You are resident in.

United States legal compliance

You represent and warrant that (a) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (b) You are not listed on any United States government list of prohibited or restricted parties.

California residence notice

To file a complaint regarding the Services or to receive further information regarding the use of the Services, contact Us via email at legal@radiantcooling.com (with “California Resident Request” as the Subject). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

BY USING THE MESSANA “SERVICES”, “YOU” WAIVE “YOUR” RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR”.

Indemnification

You agree to indemnify and hold Messana and its Affiliates, successor, assigns and their respective directors, officers, employees, agents, suppliers and licensors harmless from and against any loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, or expense (including traveling, shipments and import/export), cost, fees, (including reasonable attorney and professional fees, and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers), incurred in connection with or arising from any third-party allegations, claims, actions, disputes, or demands asserted against any of them as a result of or relating to Your content (including data, information, products or services), Your use of the Services, any misuse or modification of the Products or the Services by You, or any willful misconduct on Your part.

Severability and waiver

Severability

All rights and restrictions contained in these Terms may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render these Terms illegal, invalid or unenforceable. If any provision or portion of these Terms shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, such provision or portion will be changed and interpreted to accomplish the objectives of such provision or portion to the greatest extent possible under applicable law and it is the intention of the parties that the remaining provisions or portions thereof shall constitute their terms with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under these Terms Of Use shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall be the waiver of a breach constitute a waiver of any subsequent breach.
Any failure of Messana to assert a right or provision under these Terms Of Use shall not constitute a waiver of such right or provision.

Translation interpretation

These Terms Of Use may have been translated if We have made them available to You on our Services. You agree that the original English text shall prevail in the case of a dispute.

Assignment

You may not assign, resell, sub-license or otherwise transfer or delegate any of Your rights or obligations hereunder, in whole or in part, without Our prior written consent, which consent shall be at Our own sole discretion and without obligation; any such assignment or transfer shall be null and void. We are free to assign any of its rights or obligations hereunder, in whole or in part, to any third-party as part of the sale of all or substantially all of its assets or stock or as part of a merger.

Changes to these Terms Of Use

We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material, We will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect and will notify You through our Services and/or by email to the email address associated with Your Account. What constitutes a material change will be determined at Our sole discretion.

Revision and all changes become effective immediately upon posting. By continuing to access or use our Services after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please immediately discontinue using the Services.

Upon making any change or revision, we will also update the “Last Updated” date at the top of these Terms Of Use.

Equitable relief

Your violation of these Terms may cause irreparable harm to Us. Therefore, We have the right to seek injunctive relief or other equitable relief if You violate these Terms.

Force majeure

Messana will not be liable for any interruption, cessation, failure or delay in the performance of the Services or its obligation under these Terms, due to strikes, differences with workers, or any causes beyond its reasonable control including but not limited to fires, floods, accidents, action of any governmental authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where delays or failures are caused by labor difficulties, Messana will not be obligated to seek or obtain any settlement that, in Messana’s sole judgment, is not in Messana’s best interest.

How to contact Us

If You have any questions about these Terms Of Use, You can contact us:

  • By visiting this page on our website: https://radiantcooling.com/contact/
  • By Email:legal@radiantcooling.com
  • By mail:Messana Inc.
    Att. Legal Department
    4105 Soquel Drive, Ste. B
    Soquel, CA, 95073
    USA

Thank you for using our Services.