Terms of Sale December 2022

Last Updated: December 20, 2022

Welcome! Plume Design, Inc. (Plume or we) operates this online store (Store) to sell Plume-branded hardware and related products and service plans to use Plume’s smart-home and enterprise-grade small business services, all of which are built on self-optimizing Wi-Fi technology. These Plume Terms of Sale (Terms of Sale) apply to purchases from the Store, together with the Limited Warranty and any other term included in-box with Plume Products.

In these Terms of Sale:

You or Customer means the legal or natural person that purchases Plume Products and/or a Membership for the Plume Services.
App Platform means Apple App Store, Google Play, the Amazon Appstore or another online store through which Plume’s Mobile Apps are made available.
HomePass Services means the Plume Services known as HomePass, which is the suite of services that delivers smart home services built on self-optimizing Wi-Fi technology.
Membership means a service plan subscription for the Plume Services, whether acquired from Plume, an authorized reseller or a Plume Partner, as described at https://support.plume.com/hc/en-us/sections/360001190014-Membership.
Mobile Apps means Plume’s mobile applications used in conjunction with the Plume Services.
Plume Products means Plume’s SuperPods and related equipment sold in the Store or elsewhere on behalf of Plume.
Plume Services means the cloud-based software services, mobile applications, hardware and other related services that deliver self-optimizing Wi-Fi technology and related business intelligence services, including the HomePass Services and WorkPass Services.
WorkPass Services means the Plume Services known as WorkPass, which is the suite of services that offers fast and reliable Wi-Fi technology designed for small business.

PLEASE READ THESE TERMS OF SALE CAREFULLY.
BY CLICKING “PLACE ORDER” OR BY OTHERWISE PLACING AN ORDER FOR PLUME PRODUCTS AND/OR PLUME SERVICES, YOU AFFIRM TO PLUME THAT:

YOU ARE OF LEGAL AGE AND ABLE AND LEGALLY COMPETENT TO ENTER INTO AND BE BOUND BY CONTRACTS
YOU UNDERSTAND AND AGREE TO THESE TERMS OF SALE AND THE PLUME PRIVACY POLICY.

IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OF SALE, YOU MAY NOT PURCHASE PLUME PRODUCTS AND/OR SUBSCRIPTIONS TO THE PLUME SERVICES THROUGH THE STORE.
ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 12.1, 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 (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. (SEE SECTION 12.)

Although the Store is accessible worldwide, the Plume Products and Memberships offered through the Store are not designed and tested for use in all jurisdictions. If you choose to access the Store and/or use the Plume Products and Memberships outside a jurisdiction in which Plume supports the Store, Plume Products, and/or Memberships (Other Jurisdictions), as applicable, you understand and accept that the Store, Plume Products and Memberships are not designed for use in these Other Jurisdictions and some or all of the features of the Store, Plume Products and Memberships may not work or be appropriate for use in any Other Jurisdiction. You agree that your use of the Store, Plume Products and Memberships in an Other Jurisdiction is at your sole risk and you are solely responsible for complying with applicable local laws in that Other Jurisdiction. To the fullest extent permissible by law, Plume hereby disclaims all responsibility or liability for any damage or loss caused by your access or use of the Store, Plume Products and/or Memberships in an Other Jurisdiction.

Availability and Pricing

All Plume Products offered on the Store are subject to availability. Plume reserves the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Plume Products and/or Memberships without prior notice. Prices for the Plume Products and Memberships are subject to change at any time but changes will not affect any order you have already placed, unless there was an inaccuracy or error in descriptions or pricing of the Plume Product. If Plume changes the pricing for a Membership you purchased, Plume will provide 30 days’ prior notice of this change in accordance with Section 9. If you choose to continue your Membership after receiving a notice, you are deemed to accept the change in pricing, unless you cancel your Membership as set forth below.
Accounts

Certain Services require that you create an 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 Plume 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 you must immediately notify Plume at [email protected].
Orders

3.1. Plume Products and Memberships may be ordered via the Store (Store Purchases) or via Plume’s Mobile Apps (In-App Purchases) by clicking on the items you wish to purchase and then following the on-screen prompts. You may check and correct any input error until the point at which you click the “Place Order” button on the checkout page, at which time you are deemed to have placed an Order. After placing an Order, you will receive an acknowledgment from Plume and Plume will give you an Order reference number. In-App Purchases are purchased from and billed through the relevant App Platform, not Plume, and are subject to the App Platform’s terms and conditions.

3.2. All Orders are subject to acceptance by us. We are not obligated to accept your order and may, at our discretion, decline to accept any order. You do, however, acknowledge that by clicking on the “Place Order” button, you enter into an obligation to pay for the Plume Products and/or Membership set forth on the Order. Where we accept an Order, we will confirm acceptance by sending you a confirmation that the Order was dispatched (Order Confirmation).

3.3 The contract between you and us in relation to the Plume Products and Memberships set forth on the Order (Contract) is formed when we send you the Order Confirmation. The Contract will relate only to the Plume Products and Memberships confirmed in the Order Confirmation. We are not obligated to supply other Plume Products or Memberships that were part of an Order until confirmed by an Order Confirmation.

3.4 You agree that we may cancel an Order that we have accepted (or that applicable laws have deemed us to have accepted) for any reason even after providing you with an Order Confirmation. Reasons for why we may cancel your Order include, but are not limited to, limitations on quantities available for purchases, inaccuracies or errors in product descriptions or pricing, or for fraud prevention. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per Order. These restrictions may include Orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. If Plume makes a change to or cancels an Order, we may attempt to notify you by contacting the email and/or other contact information provided at the time the Order was made. We reserve the right to limit or prohibit an Order that, in our sole judgment, appears to be placed by dealers, resellers or distributors. We reserve the right, but are not obligated, to limit the sales of Plume Products or Memberships to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of Plume Products or Memberships that we offer. We reserve the right to discontinue any Plume Product or Membership or the Store at any time. Any offer for any Plume Product or Membership made via the Store is void where prohibited.
Payment Terms

4.1 Price. The price of Plume Products and Memberships are as quoted on the Store or Mobile App from time to time. Prices for the Plume Products may include shipping costs if expressly noted on the Store or Mobile App at the time of checkout. Prices and shipping costs are subject to change at any time, but changes will not affect an Order confirmed by an Order Confirmation, unless an inaccuracy or error in pricing or the calculation of shipping costs arises. Some of the Plume Products or Memberships listed on the Store or Mobile App may be incorrectly priced. We will normally verify prices as part of our dispatch procedures so that, where a Plume Product’s or Membership’s correct price is less than Plume’s stated price, we will charge you the lower amount. If a Plume Product’s or Membership’s correct price is greater than the price stated on the Store or Mobile App, we will normally, at our discretion, either contact you for instructions before dispatching the Plume Product or Membership, or reject the Order and notify you.

4.2 Payment.
1. Payment for Store Purchases and In-App Purchases must be made by credit or debit card, or the other payment means made available at the time of checkout. We accept payment with most major credit or debit cards, via our financing partner, Affirm, and via your linked third-party payment processing account, such as your account with an App Platform. Payments using Affirm are subject to Affirm’s terms, available here. Learn more about Affirm financing options here.
2. By providing a credit card or other payment method accepted by Plume, you represent and warrant that you are authorized to use that payment method and that you authorize Plume, Plume’s third-party payment processor or your linked third-party payment processing account to charge your payment method for the total amount of your Order (including applicable taxes and other additional charges due and payable). When paying by credit card, Plume or the applicable third party (such as an App Platform) may seek pre-authorization prior to your purchase to verify that the credit card or other payment method is valid and has the necessary funds or credit available to cover your purchase. Plume’s current third-party payment processor is Stripe. Stripe’s terms, available here, apply to payments for the Store.
  
  c. If Plume cannot verify your payment method or if it is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your order.
  
  d. If you want to change or update payment information associated with an Order, please contact Plume at [email protected].
Memberships

5.1 Memberships. For Memberships for the HomePass Services, please see https://www.plume.com/homepass/whats-included. For Memberships for the WorkPass Services, please see https://www.plume.com/workpass/whatsincluded.

5.2 Recurring Payments. If you activate a Membership, you authorize Plume or your App Provider, as applicable, to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. Except as otherwise set forth in the specific terms applicable to a Membership, the “Subscription Billing Date” for that Membership is the date when you first purchase your Membership. As to all Memberships, your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. Where permitted by applicable law, the Membership will continue unless and until you cancel your Membership or we terminate it. You must cancel your Membership before it renews in order to avoid billing of the next periodic Membership fee to your account. We, or the App Provider, as applicable, will bill the periodic Membership fee to the payment method you provide to us during registration or to a different payment method if you change your payment information or if your payment for the initial term of the Membership was made via Affirm.

5.3 Memberships Are Not Transferrable. Once a Membership is claimed to 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 account with Plume, including to a family member’s account. In addition, to use a Plume Product that was associated with one account with a new or different account, a new or different Membership is required to complete the setup of the Plume Product.

5.4 Membership Termination.
1. If you purchased your Membership through the Store, you may request termination of your Membership at any time by contacting Plume Support at [email protected]. If you request termination within sixty (60) days after the date of Order Confirmation for your purchase of new Plume Products that are sold coupled with a new Membership, you will receive a full refund upon the return of the hardware in its original packaging in good condition. Any unused Membership is not refundable if you terminate after the 60-day return period.
2. If you purchased your Membership through an App Provider, you may cancel your Membership renewal at any time with the App Provider. Subject to paragraph 5.4(d) below, you will not receive a refund for the Membership you already paid for your current subscription period and you will continue to receive the Membership ordered until the end of your current subscription period.
3. If you do not pay the entire Membership fee up-front and you cancel your Membership more than sixty (60) days after you purchase the Membership, you agree (subject to paragraph 5.4(d) below) that we may charge you (and you agree to pay) the Membership fee for the unused remainder of the subscription period. For example, if you purchase a HomePass Membership with a subscription period of twelve (12) months and Membership fees paid monthly and you terminate that HomePass Membership with six (6) months of the subscription period remaining, we have the right to charge you the fees you would have paid for that unused six-month period.
4. If you are a Quebec consumer purchasing a HomePass Membership, you may have additional rights with respect to cancellation. Please contact [email protected] for details on your cancellation rights and applicable cancellation fees.
5.5 Delinquent Accounts. Plume may suspend or terminate access to Memberships, including fee-based portions of the Store, Memberships or Mobile App, for any account for which any amount is due but unpaid. 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.
Returns

6.1 If, for any reason, you want to return a Plume Product that you purchased from the Store for a refund, you must notify us no later than sixty (60) days after the date of Order Confirmation (the Cancellation Period). To initiate a return, you must inform Plume of your decision within the Cancellation Period by contacting Plume customer support and clearly stating your desire to return the Plume Product, completing the returns form available here and submitting the return form (and other information as we may reasonably request) to Plume customer support at [email protected]. Although it will not affect your right to a refund, please include details on how and when you purchased the Plume Product and your reason for returning the Plume Product. Plume customer service will provide you with a Return Materials Authorization (RMA) that you must include with your return shipment to Plume so Plume can identify your shipment with a return address. If you purchased a Plume Product from somewhere other than the Store, please contact that reseller in connection with returns and refunds as Plume cannot, and has no obligation, to process returns and/or refunds for products not purchased via the Store.

6.2 You have a legal obligation to take reasonable care of the Plume Product in your possession prior to any refund claim. If you fail to comply with this obligation, we may have a right to deduct the cost of any deterioration (due, for example, your use of the Plume Products) up to the price of the Plume Products, from the refund to which you are otherwise entitled.

6.3 To receive a refund, you must return your Plume Product (and any promotional merchandise supplied with the Plume Product) with an RMA within fourteen (14) days after the date on which you notify Plume customer support that you choose to return your Plume Product. Unless the Plume Product is faulty or not as described, you will be responsible for all costs associated with returning the Plume Product to us (including uninstallation and the cost of shipping the Plume Product back to Plume), provided that Plume may, as a courtesy, include return shipping labels at our discretion. We will refund the price you paid for the Plume Product plus original delivery cost. 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. We may reduce the amount of your refund to reflect any reduction in the value of the Plume Product, as determined in our sole discretion, caused by your handling them in a way which goes beyond what is necessary to establish their nature, characteristics and functioning (e.g., beyond what would normally be permitted in a bricks and mortar store).

6.4 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. The Plume Product is not eligible for a refund after the 60-day period.

6.5 If any Plume Product you order 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.
Resale; Title Transfer; Freight Forwarding

Store purchases are intended for end users only and are not authorized for resale. Title for Plume Products purchased from the Store passes to the consumer at the time of delivery to the shipment address set forth on the Order Confirmation. Plume and/or the delivery carrier will be responsible for any Plume Product 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 freight forwarding from the shipping address on the Order Confirmation to any other location. Where Plume provides replacement Plume Products due to damage during shipment to the shipment address, Plume has no obligation to deliver those replacement Plume Products to any location other than the shipment address.
Shipping And Delivery

Plume will ship Plume Products in the manner and to the address indicated on the Order Confirmation. The estimated arrival or delivery date is not a guaranteed delivery date. Refused deliveries will be returned to our warehouse. It may take up to forty five (45) days for the returned items to be processed for a refund.
Modification Of These Terms

We reserve the right to change these Terms of Sale. Changes to these Terms of Sale will apply immediately to all new Orders. If a change to these Terms of Sale materially modifies your rights or obligations for a pending Order or current Membership, we will require that you accept the modified Terms of Sale in order to continue to use the Store or Plume Products and the modified Terms of Sale will become effective upon your acceptance or within thirty (30) days after notifying you, whichever is earlier. You agree that Plume may notify you by posting a notice in the Store for non-material changes to these Terms of Sale. Except as expressly permitted in this Section 9, these Terms of Sale may be amended only by a written agreement signed by authorized representatives of the parties to these Terms of Sale. 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.
Disclaimers; No Warranties

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 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, SUCH AS THE MANDATORY WARRANTIES IN THE PROVINCE OF QUEBEC, CANADA.

TO THE EXTENT DISCLAIMERS CONFLICT WITH APPLICABLE LAW, THE SCOPE AND DURATION OF THE APPLICABLE WARRANTIES IS THE MINIMUM PERMITTED UNDER THAT LAW.

THE STORE AND CONTENT AVAILABLE THROUGH THE STORE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PLUME DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE STORE AND ALL MATERIALS AND 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 OR ANY PORTION OF THE STORE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH 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.

All Plume Products and Memberships purchased through the Store 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.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE STORE OR, PLUME, ITS AFFILIATES, EMPLOYEES, RESELLERS, REPRESENTATIVES OR AGENTS (COLLECTIVELY, PLUME ENTITIES) OR ANY CONTENT AVAILABLE THROUGH THE STORE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PLUME ENTITIES OR THE STORE THAT IS NOT EXPRESSLY STATED IN THESE TERMS OF SALE. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF THE STORE AND YOUR DEALING WITH ANY OTHER STORE USER. YOU UNDERSTAND AND AGREE THAT YOU THE STORE 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.

Limitation of Liability; Exclusions

THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE DO NOT LIMIT OR EXCLUDE ANY LIABILITY THAT IS PROHIBITED FROM BEING LIMITED OR EXCLUDED UNDER APPLICABLE LAW (INCLUDING IN THE PROVINCE OF QUEBEC). TO THE EXTENT ANY LIMITATIONS OR EXCLUSIONS CONFLICT WITH APPLICABLE LAW, THE PLUME ENTITIES LIABILITY WILL BE THE MINIMUM PERMITTED UNDER THAT 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 ANY MATERIALS OR CONTENT ON THE STORE, OR ANY PLUME PRODUCTS OR MEMBERSHIPS, 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 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, PLUME PRODUCTS, MEMBERSHIPS, 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 FOR THE PLUME PRODUCT AND/OR MEMBERSHIP AT ISSUE IN THE SIX (6) MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) U.S. $100.

EACH PROVISION OF THESE TERMS OF SALE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF SALE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF SALE. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration

12.1 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.

12.2 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 12.1, 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 Plume 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.

12.3 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.

12.4 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.

12.5 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 the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. 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.

12.6 No Class Actions. (Not applicable if prohibited by applicable law, including if you are consumer in the Province of Quebec.) YOU AND PLUME AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Plume agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

12.7 30-Day Opt-Out Period. If you do not wish to be bound by the arbitration and class-action waiver provisions in this Section 12, you must notify Plume in writing within 30 days of 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. Subject to Section 12.9 below, if you do not notify Plume in accordance with this Section 12.7, 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.

12.8 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 Plume’s 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.

12.9 Enforceability. If for some reason the entirety of the agreement to arbitrate is deemed unenforceable by a competent authority, then you and Plume agree to resolve disputes arising from or related to these Terms of Sale or use of the Plume Services as described in Section 13.2 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 (not applicable if prohibited by applicable law, including if you are consumer in the Province of Quebec in Canada).
Miscellaneous

13.1 General Terms. These Terms of Sale, together with the Privacy Policy and 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 use of the Store. 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 our 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 or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. 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.

13.2 Governing Law. (Not applicable if prohibited by applicable law, including if you are consumer in the Province of Quebec in Canada). 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. If you are a consumer in the Province of Quebec, the laws of Quebec govern these Terms of Sale and you agree to submit to the personal and exclusive jurisdiction of the applicable courts in Quebec for resolution of any lawsuit or court proceeding permitted under these Terms of Sale.

13.3 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.

13.4 Additional Terms. Your use of the Store is subject to all additional terms, policies, rules or guidelines applicable to the Store that we may post on or link to from the Store (Additional Terms). All Additional Terms are incorporated by this reference into and made a part of these Terms of Sale.

13.5 Consent to Electronic Communications. The communications between you and Plume may use electronic means. Except as prohibited by applicable law, you (a) consent to receive communications from Plume in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures and other communications that Plume electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing.

13.6 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 regarding the Store or to receive further information regarding use of the Store.

13.8 No Support. We are under no obligation to provide support for the Store. If Plume chooses to offer support, the support is subject to published policies.

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 at [email protected].

The prior version of these Terms of Sale (March 31, 2021) is available here.

Legal

Terms of Sale December 2022

Dispute Resolution and Arbitration