Candu Membership Agreement
Last Updated: December 2, 2019
PLEASE READ THIS CANDU™ MEMBERSHIP AGREEMENT CAREFULLY BEFORE ACCESSING AND/OR USING YOUR CANDU MEMBERSHIP (AS DEFINED IN SECTION 1 BELOW).
This Candu Membership Agreement (this “Agreement”) is between you (“you”, “your” or “Member”) and Candu Home Solutions, Inc. (“Candu” and together with Candu’s parent company, frontdoor, inc., and their affiliates, collectively, the “Company”, “we”, “us” and “our”). By accepting this Agreement, including by click-through, digital signature or other means of acceptance or acknowledgement, and establishing a Candu membership account (“Member Account”), you expressly acknowledge and agree that (i) you have read this Agreement and agree to all of its terms and conditions, (ii) you are a U.S. resident or otherwise reside in the United States, (iii) you are legally capable of entering into binding contracts, and (iv) you have the right, authority and capacity to enter into this Agreement.
You understand that we reserve the right to change, modify, add or remove provisions of this Agreement at any time. You should check this Agreement periodically for changes. By using your Candu Membership and/or accessing your Member Account (including the Candu Membership Platform and any Member Benefits, each as defined below) after we post any changes to this Agreement or otherwise notify you of such changes, you agree to accept those changes, whether or not you have reviewed them. If you do not agree to this Agreement, you should not use your Candu Membership or any Member Benefits, and you should cancel your Member Account with us.
1. What is a Candu Membership?
A Candu membership (“Candu Membership”) consists of (i) access to a digital technology and communications platform (the “Candu Membership Platform”) as described in Section 2 below, and (ii) a suite of related free and/or fee-based content, tools, products, services, subscriptions and other offerings (collectively, the “Member Benefits”), each of which help you take the hassle out of home ownership by serving as your personal go-to resource, guide, and advisor for “all things home” and, if requested, as your digital personal home solutions provider, concierge, and/or caretaker. You gain access to and manage your Candu Membership through your Member Account available through the Candu Membership Platform. There is currently no fee for establishing and maintaining your Candu Membership, although certain Member Benefits such as the Candu Appliance Home Repair Service (as described in Section 6 below) may require a one-time or recurring fee for you to utilize those offerings. Your Candu Membership also includes our Candu Will Do Guarantee applicable to certain Member Benefits as described in Section 12 below.
2. What is the Candu Membership Platform?
The Candu Membership Platform is a digital technology and communications platform supporting your Candu Membership and is accessible through one or more digital applications or websites such as the Candu website located at www.canduhome.com (such digital applications and websites, collectively, the “Candu Applications”). The Candu Membership Platform includes any content, tools, information, communications or technology in digital, electronic, written, oral, telephonic or other form provided to you in connection with your Candu Membership. The Candu Membership Platform also provides you with access to your Member Account and the Candu Payment Processing System (as defined in Section 11 below) and enables your access to Member Benefits. As provided in Section 4 below, we may, at any time in our discretion, discontinue, modify or alter any aspect of the Candu Membership Platform without prior notice to you.
3. What are the Member Benefits included in my Candu Membership?
Member Benefits are the suite of free and/or fee-based content, tools, products, services, subscriptions, and other offerings made available to you as part of your Candu Membership. Examples of free Member Benefits may include our do-it-yourself videos on home maintenance, our digital tools to track the content of your home, and our instructional articles on how to make simple home repairs. Examples of fee-based Member Benefits include access to the Candu Appliance Home Repair Service and the Candu Appliance Upgrade Program described in Section 6 below. Member Benefits are typically accessible via the Candu Membership Platform. As provided in Section 4 below, the availability of Member Benefits may be limited based on geographic or other criteria and we reserve the right, at any time in our discretion, to discontinue, modify or alter any aspect of the Member Benefits without prior notice to you.
4. Are there any limits on the availability or use of my Candu Membership?
The availability and use of your Candu Membership, including the Candu Membership Platform and/or any Member Benefits, may be limited based on geographic or other criteria as we may establish from time to time. You understand and agree we may disallow you from accessing, using, purchasing, and/or subscribing to certain aspects of the Candu Membership Platform or certain Member Benefits, or may terminate your access, use or subscription to certain aspects of the Candu Membership Platform or certain Member Benefits at any time based on these criteria. For example, individuals under the age of 18 may not use the Candu Membership Platform, or we may limit the access to certain Member Benefits offered as part of your Candu Membership only to individuals currently owning a home in certain geographic areas or locations.
If you do not comply with this Agreement at any time, we reserve the right to cancel or terminate your Candu Membership, and/or your access to the Candu Membership Platform (or any part thereof) or any Member Benefits. We may, at any time in our discretion, discontinue, modify or alter any aspect of your Candu Membership, the Candu Membership Platform and/or any Member Benefits, including, but not limited to, restricting the time the Candu Membership Platform and/or Member Benefits are available or restricting or terminating your right to use certain aspects of the Candu Membership Platform and/or any one of our Member Benefits. You agree that our termination or cancellation of your access to, or use of, Candu Membership, the Candu Membership Platform and/or any Member Benefits may be effected without prior notice to you.
From time to time, we may supplement this Agreement with additional terms and conditions (including other limitations or restrictions) pertaining to your Candu Membership and/or any Member Benefits ("Additional Terms"). Such Additional Terms may be expressly incorporated into this Agreement, may be placed on the Candu Applications to be viewed in connection with specific content, activities, features or events, or may be presented in connection with your use or access to certain Member Benefits. For example, Additional Terms pertaining to the Candu Appliance Home Repair Service are expressly set forth in this Agreement. Regardless of where or how the Additional Terms are presented, you understand and agree that such Additional Terms are hereby incorporated by reference into this Agreement.
5. Do I need to establish a Member Account to use my Candu Membership?
You must set up a Member Account to gain access to and manage your Candu Membership. You must register with the Company and/or have, be given or create a Member Account directly with the Company. A Member Account may be on a Candu Application accessible directly by you, or may be accessible only by the Company, or both. You are the sole authorized user of your Member Account. You are responsible for maintaining the confidentiality of any log-in, password, and/or Member Account number provided by you or given to you by the Company for accessing your Member Account on the Candu Membership Platform. You are solely and fully responsible for all activities that occur under your log-in, password, and/or Member Account, even if not authorized by you. If you are accessing and using the Candu Membership Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to this Agreement and form a log-in, password, and/or Member Account on their behalf. The Company has no control over the use of your Member Account accessible via the Candu Applications and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your log-in, password, and/or Member Account, or you suspect any other breach of security, you agree to contact the Company immediately.
6. What is the Candu Appliance Home Repair Service and how do I use it?
If you have a home appliance that requires repair or service, we offer a fee-based Member Benefit in which we act as your personal home appliance repair guide, advisor and advocate to ensure that your home appliance is repaired and serviced to your full satisfaction (the “Candu Appliance Home Repair Service”). Each home appliance repair or service (“Service Job”) handled through the Candu Appliance Home Repair Service is performed by a technician (a “Candu Pro Technician”) provided by one of our qualified and rated professional independent service providers (collectively and individually, a “Candu Pro”) in your area. All Service Jobs performed pursuant to the Candu Appliance Home Repair Service are backed by our Candu Will Do Guarantee as described in Section 12 below. The availability of the Candu Appliance Home Repair Service may be limited based on geographic or other criteria and we reserve the right, at any time in our discretion, to discontinue, modify or alter any aspect of this Member Benefit without prior notice to you. The Candu Appliance Home Repair Service is offered to you for an additional fee as a Member Benefit through your Candu Membership.
Utilizing the Candu Appliance Home Repair Service is simple and follows four (4) easy steps:
You first request your Service Job by accessing the Candu Appliance Home Repair Service portal on the Candu Membership Platform and providing us with certain information on your location and required Service Job. This will allow us to determine if the Candu Appliance Home Repair Service is available in your area.
If available, you then select your preferred Service Method (e.g., Flat Fee or Diagnosis Only Fee, each as defined in Section 9 below), your preferred Service Window (e.g., Tuesday between 2pm and 4pm) as well as your method of payment for the Service Job, each as more fully described in Section 7 below. You will then be charged an Upfront Amount (as defined in Section 9 below) for your Service Job based on your preferred Service Method in order for us to initiate the repair service.
Through the Candu Membership Platform, we will evaluate and assess your Service Job needs based on the information provided, and then arrange for a Candu Pro Technician to arrive at your home during your preferred Service Window to assess whether or not it is feasible to repair your home appliance.
Assuming it is feasible to repair your home appliance and depending on your chosen preferred Service Method, the Candu Pro Technician will either (i) perform the Service Job (including providing all labor, parts and other charges subject to the limitations set forth below in Section 8), or (ii) provide you with a diagnosis for your Service Job and give you the opportunity to decide if you want to proceed with the repair for an estimated repair amount. Upon completion of the repair or the diagnosis only, either we or the Candu Pro (as applicable) will charge you for any remaining amounts owed on the Service Job based on your chosen Service Method.
If your chosen Service Method includes a Flat Fee, the determination of whether it is feasible to repair your home appliance shall be made by the Candu Pro and/or the Candu Pro Technician and, if feasible, the Candu Pro and/or the Candu Pro Technician will proceed with the repair unless otherwise instructed by us. Factors to be considered regarding whether it is feasible to repair an item include, but are not limited to, the cost of new equipment; parts availability; the age of the item to be repaired; the relative cost of repair to the cost of new equipment; or any other factor the Candu Pro and/or the Candu Pro Technician deems relevant in assessing the feasibility of repair.
If the repair of your home appliance is not feasible and your chosen Service Method includes a Flat Fee, you will only owe the Upfront Amount for the Service Job as described in Section 9 below. Further, in such instances, you may be eligible to participate in our appliance upgrade program to purchase a replacement appliance, which may be offered at favorable discounted prices (the “Candu Appliance Upgrade Program”). Similar to the Candu Appliance Home Repair Service, the Candu Appliance Upgrade Program is a fee-based Member Benefit and its availability may be limited based on geographic or other criteria. Additional Terms may apply to the Candu Appliance Upgrade Program which will be communicated to you separately if you choose to participate in this Member Benefit. We reserve the right, at any time in our discretion, to discontinue, modify or alter any aspect of the Candu Appliance Upgrade Program without prior notice to you.
Typically, as part of the Candu Appliance Home Repair Service, with respect to any Service Job, we will ensure that your home appliance is repaired by engaging the Candu Pro, arranging for the arrival of the Candu Pro Technician during the Service Window, and being responsible for making all payments to the Candu Pro except for any costs or fees set forth in a Non-Covered Service Agreement (as defined in Section 8 below). However, we may, in certain limited circumstances depending on the Service Job, engage the Candu Pro on your behalf. In such instances, we will notify you at the time of the confirmation of such Service Job and you agree for us to act on your behalf in doing so.
CANDU PROS AND CANDU PRO TECHNICIANS ARE INDEPENDENT CONTRACTORS AND ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS OR FRANCHISEES OF THE COMPANY. THE COMPANY DOES NOT PERFORM CONTRACTOR SERVICES AND DOES NOT EMPLOY INDIVIDUAL PERSONS TO PERFORM CONTRACTOR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT DIRECT, CONTROL OR SUPERVISE A CANDU PRO’S OR A CANDU PRO TECHNICIAN’S WORK AND, EXCEPT AS PROVIDED IN THE CANDU WILL DO GUARANTEE, EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED AND THE SERVICES IN ANY MANNER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF MERCHANTIBILITY, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE RELATED TO A CANDU PRO’S OR CANDU PRO TECHNICIAN’S WORK.
7. What are the Service Methods and Service Windows offered through the Candu Appliance Home Repair Service?
The different means and methods (as well as the particular terms and conditions applicable to such means and methods) that the Company offers for handling Service Jobs through the Candu Appliance Home Repair Service (collectively, “Service Methods”) shall be determined in the sole discretion of the Company from time to time. Service Methods may include Flat Fee, Diagnosis Only Fee, subscription or other means for providing repair services for Service Jobs and may be limited in scope such as to certain specified appliances, to the coverage of certain specified costs (e.g., labor, individual components and/or parts), or to certain other criteria (e.g., speed of service, availability and/or timing). You will typically be offered one or more Service Methods and an opportunity to select your preferred Service Method for a Service Job. The Company reserves the right, at its sole discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the Service Methods (in whole or part) offered from or through the Candu Appliance Home Repair Service at any time for any reason or no reason at all. Except as provided in the Candu Will Do Guarantee, the Company has no obligation to you for any such Service Method change.
You will typically be presented with the opportunity to select time frames when a Candu Pro Technician will arrive at your home for purposes of handling a Service Job under a Service Method (“Service Window”) and you will typically be offered an opportunity to choose your preferred Service Window. All Service Windows are subject to confirmation by us. The Company reserves the right, in its sole discretion, to change, modify, add to, supplement, suspend, discontinue, or delete any of the Service Windows (in whole or part) offered from or through the Candu Appliance Home Repair Service at any time for any reason or no reason at all. Except as provided in the Candu Will Do Guarantee, if the Company cannot meet your originally requested Service Window, the Company will make reasonable efforts to accommodate an alternative Service Window or refund your Upfront Amount. In such instances, the Company has no further obligation to you for any such Service Window change.
8. What additional limitations, restrictions and exclusions apply to the Candu Appliance Home Repair Service?
Your chosen Service Method will determine the repair services you receive, including the costs for components, parts, and/or labor for the Service Job, that are covered (“Covered Repair Services”). For example, if you choose a Service Method that includes a Flat Fee, Covered Repair Services for the Service Job will be as described below in this Section 8. Alternatively, if you choose a Service Method that includes a Diagnosis Only Fee, only the services needed to diagnose the Service Job’s repair requirements will be covered (“Covered Diagnosis Services”) by the fee you agree to pay us except as otherwise explicitly provided at the time the Diagnosis Only Fee Service Job is confirmed.
Except as otherwise provided in this Section 8 or pursuant to additional terms agreed to at the time a Service job is requested, Covered Repair Services shall include access, diagnosis, costs and repairs to a home appliance for (i) normal wear and tear; (ii) rust, corrosion or sediment; (iii) improper installations, repairs or modifications; and (iv) cost to recapture, reclaim and dispose of refrigerant; provided the home appliance was (A) installed within the confines of the main foundation of the home or attached or detached garage (and so long as the home appliance was manufactured for outside use or is located in a structure which fully protects the item from the elements); and (B) if the home appliance item is a domestic grade or commercial grade item, such item is specified by the manufacturer for residential use.
Except as explicitly provided in this Section 8 or pursuant to additional terms agreed to at the time a Service Job is confirmed, Covered Repair Services shall not include (otherwise called “Non-Covered Services”) access, diagnosis, costs and repairs to a home appliance for:
a. flues, venting, chimneys and exhaust lines;
b. electronic, computerized or home management systems;
c. radon monitoring systems, fire sprinkler systems and solar systems and components;
d. repair, installation or modification of any component or part thereof that has been, or is, determined to be defective by the Consumer Product Safety Commission or for which a manufacturer has issued, or issues, a warning, recall, or determination of defect;
e. repairs required (i) when the malfunction is due to lack of capacity in the existing home appliance, or (ii) to comply with any Federal, state or local laws, regulations or ordinances, utility regulations, or building or zoning code requirements except as otherwise specifically provided in these Terms of Service;
f. services or remediation costs involving hazardous or toxic materials other than costs to recapture, reclaim and dispose of refrigerant;
g. in regard to mold, mildew, bio-organic growth, rot, fungus or extensive pest damage, damages from such causes, diagnosis, removal or remediation of such conditions, and repairs necessitated by such causes;
h. providing or closing access to a covered item, costs of construction, carpentry, or other modifications necessary to remove, relocate or install equipment, or restoration of any wall or floor coverings, cabinets, countertops, tiling, paint, or the like;
i. repairs due to (a) accidents, fire, freezing, water damage, electrical failure or surge, or excessive or inadequate water pressure, (b) lightning, mud, earthquake, soil movement, storms or acts of God, or (c) a manufacturer’s improper design, improper materials or formulations, a defective manufacturing process, or other manufacturing defects;
j. additional fees required by the Candu Pro if cranes or other lifting equipment are needed to perform the Service Job; and
k. costs associated with the involvement of third party contractors other than the Candu Pro, such as plumbers or electricians, required to complete the Service Job.
If a Service Job consists, in whole or part, of Non-Covered Services (including non-covered labor, components, parts and other charges) due to the foregoing coverage limitations, restrictions and exclusions or as a result of a Service Method that includes a Diagnosis Only Fee, you can, but are not obligated to, reach agreement with the Candu Pro to receive and perform such Non-Covered Services pursuant to such contractual and payment terms as agreed to by you and the Candu Pro (“Non-Covered Service Agreement”). Any Non-Covered Services performed pursuant to a Non-Covered Service Agreement shall not be covered by the Candu Will Do Guarantee offered by the Company as described in Section 12 below.
It is your responsibility to determine whether your Service Job may be covered by a third party or manufacturer’s warranty or guarantee (other than the Candu Will Do Guarantee). If so covered by a third party or manufacturer’s warranty or guarantee, neither the Candu Pro, the Candu Pro Technician, nor us are responsible for pursuing any third party warranty or guarantee claim applicable to the Service Job, and there can be no assurances that any repair performed pursuant to your Service Job request will be performed in a manner that will preserve any such warranty or guarantee claim.
9. What are the fees owed for Service Jobs through the Candu Appliance Home Repair Service?
The fees owed will be determined by your chosen Service Method for the applicable Service Job. The type and amount of fees applicable to certain Service Jobs will be set forth and described at the time the Service Job is requested, and other Service Jobs may delay fee specification until after diagnosis of the item to be repaired occurs. You will be responsible for paying the fees for each Service Job requested (the “Payment Amount”) pursuant to the chosen Service Method. You may be required to pay the Payment Amount upfront in whole or part (the “Upfront Amount”) to initiate the repair services. Your chosen Service Method also may include a fixed Payment Amount for Covered Repair Services to be rendered (“Flat Fee”) or may include a diagnosis only Payment Amount (“Diagnosis Only Fee”). The Payment Amount (including any Flat Fees or Diagnosis Only Fees) may or may not be inclusive of any Upfront Amount and may include additional payment terms and conditions described on the Candu Membership Platform at the time the Service Job is requested or the required repairs are diagnosed.
Payment of the Upfront Amount, the Flat Fee, the Diagnosis Only Fee, and any other Payment Amount through the Candu Membership Platform shall be made via the Candu Payment Processing System (as defined in Section 11 below). When you receive confirmation through the Candu Membership Platform (including via email, telephone, text, chat, or otherwise) that a Service Job has been completed (or, in the case of Upfront Amount, once you agree to engage us to undertake a requested Service Job), you automatically authorize the Candu Payment Processing System to process the payments, fees, and other charges owed. You may be charged a service cancellation fee through the Candu Payment Processing System if you request a Service Job but cancel it after the Candu Pro Technician departs for your service location.
In the event a Service Job is unable to be performed because it is not feasible to repair your home appliance (as determined in the manner described in Section 6 above), you shall be entitled to a refund of any amounts paid less the Upfront Amount or you may apply any amount paid (excluding the Upfront Amount) in full towards a replacement appliance under the Candu Appliance Upgrade Program (pursuant to any Additional Terms as applicable to such purchase program) if such Member Benefit is available to you. If a Service Job under the Flat Fee Service Method is determined to include both Covered Repair Services and Non-Covered Services, the Flat Fee shall only apply to cover the costs of the Covered Repair Services. If a Service Job for a Flat Fee is determined to be for only Non-Covered Services, any amounts paid less the Upfront Amount will be refunded to you except as you and the Company otherwise agree.
10. What is your background check policy for Candu Pros and Candu Technicians?
Candu Pros and Candu Pro Technicians may, in our sole discretion, be subject to an extensive vetting process before they can perform Service Jobs, including but not limited to a verification of identity, background checks and licensure, using third party services as appropriate (collectively, “Identity and Background Checks”). Although we may obligate Candu Pros who are entities to perform Identity and Background Checks on themselves, their employees, and their independent contractors, the Company is not required to do so and cannot confirm each Candu Pro’s or Candu Pro Technician’s identity. The Company does not assume any responsibility for the accuracy or reliability of Identity and Background Check information or any similar information collected by a Candu Pro. When interacting with other Members, Candu Pros, or Candu Pro Technicians, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you do not know.
EXCEPT AS PROVIDED IN THE CANDU WILL DO GUARANTEE, NEITHER THE COMPANY NOR ITS PARENTS, SUBSIDIARIES, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, STOCKHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS THE “COMPANY AND ITS REPRESENTATIVES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE CANDU MEMBERSHIP PLATFORM OR THE CANDU APPLICATIONS AND YOU HEREBY RELEASE THE COMPANY AND ITS REPRESENTATIVES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE CANDU MEMBERSHIP PLATFORM.
You, in your sole discretion, determine whether you will be present or not when a Service Job is performed and/or completed. If you elect not to be present when a Service Job is performed and/or completed, you agree that if someone other than you (e.g., spouse, roommate, friend, etc.) is present when the Service Job is performed, you are appointing that person as your agent (“Member Agent”) and the Candu Pro Technician may take and follow direction from the Member Agent as if such direction was directly given by or from you. You represent and warrant that the Member Agent is 18 years of age or older or at least the legally required age of majority in the jurisdiction in which you reside.
11. How are payments made under my Candu Membership?
Amounts owed for fee-based content, tools, products, services, subscriptions, and other offerings made available to you as part of your Candu Membership (for example, for amounts owed for fee-based Member Benefits) shall be made utilizing the Company or third party payment processing system specified or approved by us (the “Candu Payment Processing System”). You will be required to provide your payment method details to the Company and the Candu Payment Processing System (including any third party payment system providers selected by the Company).
Through the Candu Payment Processing System, we or third party payment processing providers may use third party services to process credit card, debit card and other approved methods of payments for amounts owed by you. By accepting this Agreement, you are giving the Company (or third party payment processing providers) permission to charge your on-file credit card, debit card or other approved method of payment for fees, payments and other amounts owed. Depending on the terms of the fee-based Member Benefits requested under your Candu Membership, you may be charged on a one-time, installment or recurring basis, and you may be charged upfront and/or upon completion of the Member Benefit. You agree that all payment information (including credit card, debit card or other approved payment method information) that you provide in connection with the Member Benefit is accurate, complete and current. To help prevent fraud and safeguard Member information from the risk of unauthorized access, the Company and/or the third party payment processing provider may validate payment information (including credit card, debit card or other approved payment method information) before activation of a Member Account or the provision of a Member Benefit.
The Company reserves the right (but not the obligation), in its sole discretion, upon request from you, or upon notice of any potential fraud, unauthorized charges or other misuse of the Candu Membership Platform, to (i) place on hold any invoice amount, payment and/or fee due or owed (as applicable) or (ii) refund or provide credits, or arrange for the Candu Payment Processing System provider to do so. Except as provided in this Agreement, any Additional Terms or otherwise permitted by the Company, all payments, charges and fees for Member Benefits must be paid through the Candu Payment Processing System as indicated on the Candu Membership Platform. You will be liable for any taxes required to be paid on the Member Benefits provided under this Agreement.
12. What is the Candu Will Do Guarantee?
13. Do I need a computer, mobile phone or other device to access My Candu Membership?
Some aspects of your Candu Membership, including the Candu Membership Platform and Member Benefits, may require you to use, or for us to access information on, your computer or other applicable device, particularly if you access your Candu Membership via a Candu Application. By providing us with your mobile phone number and using the Candu Membership Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and recurring texts, in order to (i) perform and improve upon the Candu Membership Platform and/or Member Benefits, (ii) facilitate our performance of Member Benefits through the Candu Membership Platform, and/or (iii) provide you with information and reminders regarding your registration, orientation, upcoming services, product alterations, changes and updates, amounts owed, service outages or alterations. These calls and texts may include, among other things, reminders about incomplete or upcoming services and/or in follow up to any push notifications delivered through our Candu Applications. The Company will not assess any charges for calls or texts, but standard message, data or other charges from your wireless carrier may apply.
The Candu Membership Platform is operated by the Company in the United States. In order for us to provide you with a Candu Membership (including the Candu Membership Platform and the Member Benefits), you agree that we may transfer, use and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. If you choose to access the Candu Membership Platform and/or Member Benefits from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws; provided, however, that the Candu Membership Platform and/or the Member Benefits are not available to, and should not be accessed and used by, residents of the European Economic Area.
14. Do you offer promotions to Members?
The Company may from time to time provide certain promotional opportunities and contests to its Members or prospective Members. All such promotions and contests will be run at the sole discretion of the Company, and can be activated, modified, discontinued or removed at any time for any reason by the Company without advance notification. Promotional or other discount codes (collectively, “Promo Codes”) may be available and can be used to pay or reduce all or any amounts owed for Member Benefits. The use or application of any Promo Code is solely intended as a promotional. You agree that you will use Promo Codes in accordance with the terms of the Promo Code. The Company reserves the right to withhold or deduct credits or other features or benefits obtained through the use of a Promo Code by you or any other Member in the event that the Company determines or believes that the use or redemption of a Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or this Agreement.
15. What other policies are applicable to my Candu Membership?
16. What other terms and conditions are applicable to my Candu Membership?
A. Disclaimer of Warranties and Limitation of Liability
THE CANDU MEMBERSHIP AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, SERVICES (INCLUDING ALL FREE OR FEE-BASED MEMBER BENEFITS) AND OTHER OFFERINGS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE CANDU MEMBERSHIP PLATFORM ARE PROVIDED BY THE COMPANY ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. THE COMPANY AND ITS REPRESENTATIVES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE CANDU MEMBERSHIP, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS, SERVICES (INCLUDING ALL FREE OR FEE-BASED MEMBER BENEFITS) AND OTHER OFFERINGS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH CANDU MEMBERSHIP PLATFORM, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF YOUR CANDU MEMBERSHIP (INCLUDING THE CANDU MEMBERSHIP PLATFORM AND THE MEMBER BENEFITS) IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY LAW, THE COMPANY AND ITS REPRESENTATIVES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT THE CANDU MEMBERSHIP AND THE INFORMATION, CONTENT, MATERIALS, PRODUCTS, SERVICES (INCLUDING ALL FREE OR FEE-BASED MEMBER BENEFITS) AND OTHER OFFERINGS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE CANDU MEMBERSHIP PLATFORM, THE COMPANY'S SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM THE COMPANY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY LAW, THE COMPANY AND ITS REPRESENTATIVES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY THE CANDU MEMBERSHIP, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS, SERVICES (INCLUDING ALL FREE OR FEE-BASED MEMBER BENEFITS) AND OTHER OFFERINGS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE CANDU MEMBERSHIP PLATFORM, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
IF, NOTWITHSTANDING THE FOREGOING, IT IS DETERMINED THAT THE COMPANY AND ITS REPRESENTATIVES ARE LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU TO THE COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
You hereby agree to indemnify, defend, and hold harmless the Company and its Representatives, and their attorneys, insurers, independent contractors, providers, successors and assigns (the “Indemnified Parties”) from and against any and all any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorney’s fees and costs (collectively, “Liabilities”) that have arisen or may arise, incurred in connection with (i) your use or inability to use your Candu Membership, (ii) your breach or violation of this Agreement, (iii) your violation of any law, or the rights of any third party, and (iv) any content submitted by you or using your Member Account with respect to the Candu Membership Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful. You also agree to indemnify the Indemnified Parties for any Liabilities resulting from your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or loan on our infrastructure. The Company reserves the right, in its own sole discretion, to assume the exclusive defense and control at its own expense of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the prior written consent of the Company.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND THE COMPANY CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND THE COMPANY TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS.
Any dispute or claim relating in any way to your use of your Candu Membership, or to the information, content, materials, products, services (including all free or fee-based Member Benefits) and other offerings included on or otherwise made available to you through the Candu Membership Platform and/or through the Candu Applications will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Candu Home Solutions, Inc., 150 Peabody Place, Suite 300, Memphis, TN 38103, Attention: Legal Department. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes (the “AAA’s Rules”). The AAA's Rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, in person in the state where you live, or at another mutually agreed location.
You and the Company each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class action lawsuit, class-wide arbitration, or any other consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and the Company each waive any right to a jury trial. You and the Company also both agree that the Company may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Notwithstanding any other provision of this Agreement or the AAA’s Rules, to the fullest extent allowed by law: (A) you and the Company agree not to bring a representative action on behalf of others under the California Private Attorneys General Act of 2004 (as amended, “PAGA”), or the California Labor Code § 2698 et seq., in any court or in arbitration, and (B) for any claim brought on a private attorney general basis, including under PAGA, both you and the Company agree that any such claim shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “Representative PAGA Waiver”). Notwithstanding any other provision of this Agreement or the AAA’s Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this Representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.
YOU ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER CONSOLIDATED OR REPRESENTATIVE ACTION.
D. Governing Law
This Agreement and your use of your Candu Membership (including the Candu Membership Platform and the Member Benefits) will be governed by, and will be construed under, the laws of the State of Tennessee, without regard to choice of law principles. This choice of law provision is only intended to specify the use of Tennessee law to interpret this Agreement and is not intended to create any substantive right to non-Tennesseans to assert claims under Tennessee law whether by statute, common law, or otherwise.
E. General Provisions
You consent to receive any agreements, notices, disclosures and other communications (collectively, “Notices”) to which this Agreement refers electronically including without limitation by e-mail or by posting Notices on the Candu Applications. You agree that all Notices that we provide to you electronically satisfy any legal requirement that such communications be in writing. Unless otherwise specified in this Agreement, all Notices under this Agreement will be in writing and will be deemed to have been duly given (i) when received, if personally delivered or sent by certified or registered mail, return receipt requested; (ii) when receipt is electronically confirmed, if transmitted by facsimile or email; or (iii) on the day after it is sent, if sent for next day delivery by a recognized overnight delivery service.