Meltek's Terms of Service

We encourage you to read before you agree so that you're always in the know!

Effective Date of Revision: January 1, 2022

Welcome and thank you for your interest in Meltek Inc and our Services, as defined below in section 2.c. The Terms of Service (“Terms”) are a binding Agreement between Meltek Inc (together with its successors and assigns, here forward described as “Meltek”) and users of its Services, here forward described as “User” or “Users” governing User’s use of and access to the Services that is effective until terminated in accordance with Section 12 below.

BY CHECKING THE BOX, CLICKING “I AGREE”, OR OTHERWISE ACCESSING OR USING THE SERVICES, USER EXPRESSLY AGREES TO BE BOUND BY AND ABIDE BY THESE TERMS. IF USER DOES NOT AGREE TO THESE TERMS, USER MAY NOT ACCESS OR USE THE SERVICES, AND USER MUST IMMEDIATELY DISCONTINUE ANY AND ALL USE OF THE SERVICES. Meltek may change these Terms by notifying User of such changes by any reasonable means, including by posting revised Terms through the Services. If Meltek makes a material change to the Terms, User will be notified of the revised terms when User first attempts to access the Services after such changes have become effective. User will not be notified of non-material changes to these Terms except by an amendment to the “Last Updated” legend, which indicates when these Terms were last changed. User’s continued use of the Services following any changes to these Terms will constitute User’s acceptance of those changes.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, User agrees that disputes arising under these Terms will be resolved by binding, individual arbitration (not in court), and BY ACCEPTING THESE TERMS, USER AND MELTEK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. USER AGREES TO GIVE UP USER’S RIGHT TO GO TO COURT to assert or defend User’s rights under this contract (except for matters that may be taken to small claims court). User’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 16) 

BY ENROLLING WITH MELTEK, USER AGREES MELTEK MAY EMPLOY USER’S DEMAND RESPONSE AND OR LOAD MANAGEMENT SERVICES THROUGH A VARIETY OF MARKET APPLICATIONS INCLUDING BUT NOT LIMITED TO DEMAND RESPONSE PROGRAMS IS CURRENTLY ENROLLED.

USER UNDERSTANDS THAT IF USER IS CURRENTLY ENROLLED IN A DEMAND RESPONSE PROGRAM WITH ANOTHER ENERGY SERVICES PROVIDER, USER ACKNOWLEDGES USER’S INTENT TO DISENROLL FROM USER’S CURRENT DEMAND RESPONSE PROGRAM WITH THAT PROVIDER.

1. Accounts

a. General. In order to use Meltek Services, User must create a user account through app.Meltek.io, as part of which User shall provide certain registration information concerning User’s email address and other details (the “Account Information”). User agrees to provide accurate Account Information and User agrees to notify Meltek immediately of any changes in such information.
b. Eligibility. User must be at least 18 years old to use Meltek Services. By agreeing to these Terms, User represents and warrants that: (a) User is at least 18 years old (or such other age as may be required in User’s jurisdiction to validly form legal agreements, if older than 18); (b) User has not previously been suspended or removed from Meltek Services; (c) User has not relied on any representation, whether oral or otherwise, of Meltek or any employee, representative, or agent of Meltek as an inducement to entering into these Terms; and (d) User’s registration and User’s use of the Services is in compliance with any and all applicable laws and regulations. If User is an entity, organization, or company, the individual accepting these Terms on User’s behalf represents and warrants that they have authority to bind User to these Terms and User agrees to be bound by these Terms.
c.  If User signs up directly with Meltek and does not use a third-party service, User’s existing utility company password will be used. User may change the password for User’s account at any time. User must maintain the confidentiality of User’s password. Meltek encourages User to use “strong” passwords (passwords that use a combination of upper- and lower-case letters and numbers with User’s account). User is solely responsible for the activity that occurs on User’s account. User, and not Meltek, is responsible for any use or misuse of User’s account, username, or password, and User must promptly notify us of any unauthorized use of User’s account. Meltek will not be liable for any losses caused by unauthorized use of User’s account.
d. Fees. Unless otherwise noted, the Services are provided to users free of charge in consideration of the right to monitor the energy consumption of each user and to coordinate and sell or otherwise monetize demand response, energy reductions and load modifications by the user. User acknowledges that User is not entitled to share in any revenues or benefits from such activities or to receive any compensation other than receiving points or Rewards in accordance with Section 8.

2. License to Services

a. Use of the Services. Subject to these Terms, Meltek grants User a non-exclusive, non-transferable and non-sublicensable right to access and use the Services solely for the purpose of managing User’s energy consumption as described below.
b. Restrictions on License. The Services are licensed, not sold. Meltek and its licensors retain all right, title, and interest in and to the Services, all content and other subject matter contained in or made available through the Services, and all related intellectual property rights. User obtains no rights in or to the Services under these Terms or any content or other subject matter made available through the Services. User may not reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of the Services, except as expressly authorized herein. User may not reverse engineer, decompile or disassemble any portion of the Services, provided that to the extent the foregoing prohibitions are expressly prohibited by applicable statutory law, Meltek shall retain the maximum protection available against reverse engineering, decompiling, or disassembly under applicable law. User also may not remove any patent, copyright, trade name, trademark, service mark, logo or other proprietary rights notice from the Services.
c) Description of Services. The Services are designed to coordinate energy reductions and load modifications at specific times and to sell those aggregate reductions on energy markets. For these purposes, the Services will monitor User’s energy consumption by, among other things, accessing and analyzing User’s electricity records on file with User’s utility company (“Utility Records”). Information concerning User’s energy reductions and load modifications is shared with energy market regulators, wholesalers, and retailers to measure the amount of energy saved through Meltek’s coordination of energy reductions. As part of the Services, Meltek will notify User of energy saving events, in which User can earn Watts that can be redeemed for rewards or cash in exchange for reducing User’s energy usage during the specified window (“Peakers”). User may also authorize Meltek to remotely manage User’s devices on User’s behalf (including, but not limited to home appliances and thermostats) that are otherwise connected to the Internet through various enabling services (“Connected Devices”). To facilitate timely energy reduction, the Service contains a feature to automate the control of Connected Devices for User’s account, including during brief events in which Meltek will automatically power down User’s Connected Devices (“Gridout (s)”). Gridouts happen in response to real-time surges and problems in the energy grid, so Meltek may not provide advance notice of these events. User may at any time elect to manage User’s Connected Devices directly or to override any actions taken by the Services. These Connected Devices may be managed through services operated by third parties, such as the manufacturers of those devices and User’s use of such Connected Devices may be subject to the third party provider’s terms and conditions (“Third Party Terms”).  To use the Services with User’s Connected Devices, User may need to provide certain log-in credentials or other authentications methods to the Connected Devices (the “Connected Device Credentials”). By providing the Connected Device Credentials for User’s device User agrees and understands:

User has the authority and rights to provide User’s credentials or authenticate control of User’s devices to Meltek.
User’s use of Meltek is in compliance with all applicable Third Party Terms.
User may override the automated control of User’s device for any Peaker or Gridout event.
Meltek may experience issues in device control during a Peaker or Gridout due to Internet, wireless connectivity, or other Service issues and this may impact the ability to turn devices off and on.
User may need to manually turn the device off or back on. User will receive notification to participate in Peaker or Gridout events and User may opt out for those events, in part or in whole. Meltek will attempt to turn all authorized connected devices off for the duration of a Peaker. At the end of a Peaker or Gridout, Meltek will attempt to turn User’s connected devices back on. In the event Meltek cannot turn a device back on after multiple attempts Meltek will contact User via email, text, app or browser alerts.

d. Permissions. By submitting Account Information, Connected Device Credentials, and log-in information for User’s Utility Records, and other information (together, the “Information”), User is licensing that content to Meltek for the purpose of providing the Services in accordance with these Terms and our Privacy Policy located at www.Meltek.com/privacy-policy. User hereby authorizes and permits Meltek to use and store the Information to configure the Services so that they are compatible with the third party sites. These third party sites include utilities, and other services that may manage User’s Connected Devices. For purposes of these Terms User appoints Meltek as User’s agent to access these third party sites, and to perform such things as User could do himself. User understands and agrees that the Services may or may not be sponsored or endorsed by some third parties.
e. Deactivation of User’s Account. User may deactivate or delete User’s account at any time through the Services. However, certain data associated with User’s account, such as the Account Information or Utility Records, may not be deleted where such information is required by regulators for audit purposes or where information used in aggregate will enable Meltek to optimize Services for the electrical grid. Deactivation process can take up to thirty (30) days.
f. Disenroll from Meltek Services. User may disenroll at any time from the Meltek services. This process may take up to thirty (30) days to complete. By disenrolling, users forfeit outstanding point values, status, and referrals. Meltek has the right to accept or reject all re-enrollments. 
g. Updates to the Services. Over time, the features and functions that are enabled within the Services will change as our business evolves. New features and functions may be added, and others may be deleted or modified. User agrees that Meltek may update, modify, or discontinue the Services (in whole or in part) or any features or functions within the Services, at any time, in Meltek’s sole discretion. To provide User with a more seamless user experience, Meltek may update or modify the Services remotely without notifying User in order to ensure the safe and proper operation of the Services (e.g., bug fixes), and User consents to such updates or changes by Meltek.

3. Acceptable Use PolicyUser may use the Services only in compliance with these Terms, and all local, state, national, and international laws, statutes, rules and, regulations applicable to use of the Services. User shall not:

(a) Post, transmit or otherwise make available through or in connection with the Services any materials that are or may be:

(b) Post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.

(c) Interfere with or disrupt the operation of Meltek’s Services, servers, or networks.

(d) Use the Service to establish a competitive product.

(e) Impersonate any person, business, entity, or IP address.

(f) Frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service, without Meltek’s express prior written consent.

(g) Systematically download and store Services content, or alter, damage, or delete any content provided by Meltek.

(h) Use any robot, bot, crawler, spider, or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services, without Meltek’s express prior written consent.

4. Service Limitations

(a) Availability. Because the Services are delivered over the Internet, the availability of the Services is subject to certain limitations. User agrees that the Services are subject to limitations and restrictions outside Meltek’s control, which include such things as wireless network capabilities, and Internet availability. Meltek may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that Meltek chooses.

(b) Energy Savings and Benefits. Meltek does not guarantee or promise any specific level of energy savings or other benefit from the use of the Services. Actual energy savings and benefits vary depending on factors beyond Meltek’s control or knowledge.

5. Privacy & Security
By using the Services, User consents to the collection, use, disclosure and sharing of data as set forth in Meltek’s privacy policy located at www.Meltek.com/privacy-policy (“Privacy Policy”). The Privacy Policy is incorporated by this reference into, and made a part of, these Terms. Meltek is committed to maintaining the security of the data User provides us and will take reasonable organizational, technical, and administrative measures to protect User’s personal information. However, the Services are provided through wireless networks and the Internet, and there is always some risk in transmitting information over the Internet. For this reason, Meltek cannot guarantee the security and privacy of wireless transmissions or transmissions via the Internet, and User agrees that Meltek will not be liable for any lack of security relating to the use of the Services by User. User agrees that User will not hold Meltek liable for any damages resulting from any loss of privacy or security occurring in connection with any communications over such networks.

6. Short Code Messaging
When User opts-in to the Meltek service, Meltek will send User a message to confirm User’s signup. Meltek will send recurring messages for the Meltek service to alert User to energy saving events. Meltek estimates User will receive one to three messages per week. User can cancel SMS service at any time by replying STOP to an existing SMS message. 
Message and data rates may apply. If User has any questions about User’s text plan or data plan, it is best to contact User’s wireless provider. If User has any questions regarding privacy, please read our privacy policy located at https://www.Meltek.com/privacy-policy.

7. Meltek Store
DISCLAIMER OF WARRANTIES and RETURN POLICY. Meltek makes no warranties, express or implied, regarding any hardware device, and there will be no implied warranties of merchantability or of fitness for a particular purpose. Devices carry the warranties specified by the applicable third party manufacturers. 

User is eligible only to receive one account authorization promo, which is featured on the page on which User originally submit User’s email, zip code, and set password.

Unless otherwise specified, all promotions are limited to one (1) discount code per service account.

8. Rewards Program & Other Promotions
Meltek’s rewards program allows a user to receive rewards based on a user’s level of participation in the Services and conditions in the energy market prevailing during relevant use periods. Reward points can be redeemed for a variety of goods or services that Meltek may make available from time to time, including gift cards, activities or cash. Rewards are available based on a variety of factors including, but not limited to, location, time of day, grid conditions, total amount of energy saved by a user, or the availability of a particular Reward at the time a user redeems their Watts. Rewards may be subject to additional terms and conditions. Any Reward that is obtained due to Meltek’s error or a user’s fraudulent, deceptive, or illegal activity (including in violation of these Terms) is void. Meltek may add, remove, or change Rewards at any time without notice. Users are solely responsible for compliance with federal, state, and local tax and other laws, and any costs, associated with accepting and using a Reward.

There is no fee associated with participating in the Rewards program. Rewards are non-transferable and may not be sold, exchanged, shared, or assigned to or with another user or Meltek account. Rewards may not be combined with any other offers or discounts except as expressly permitted by Meltek. Meltek reserves the right to impose limits on the amount of Reward that a user may receive or maintain in their Meltek account at any time, or the amount, frequency, or type of Rewards.  Participation in the Rewards program requires an active membership in the Services. If a user fails to have any qualifying activity over three (3) consecutive months, the user’s Meltek account will be deemed inactive and all accrued Rewards in the Meltek account will be forfeited. Meltek reserves the right, in its sole discretion, to suspend or terminate a user’s ability to receive or redeem Rewards, or to void any accrued Rewards in a user’s Meltek account, if Meltek suspects that the user’s participation in the Rewards program violates these Terms or that the user is engaged in fraudulent, deceptive, or unlawful activities. Meltek may modify, suspend, or terminate the Rewards reward program at any time. If Meltek terminates a user’s participation in the Rewards reward program or terminates the Rewards reward program, or a user closes their Meltek account, all accrued Rewards in the user’s Meltek account will become void. Promotions.  Meltek, from time to time, may offer different promotions, such as a Referral Program allowing users to refer new members to join the Meltek platform. At the discretion of Meltek, referring a new member (“Referred User”) to the Meltek platform may result in Rewards or cash (“Referral Award”) for the person making the referral (“Referrer”); it also may result in Rewards or cash to the Referred User.

If User uses a method or methods to abuse the Referral Program, User will forfeit any Rewards or cash received as part of a Referral Award and User will not be allowed to participate on the Meltek platform. Meltek may suspend or terminate the Referral Program or a user’s ability to participate in the Referral Program at any time for any reason. All rewards will be forfeited at account closure.  

9. User Provided Content
The Services may contain features that allow User and other users to make available certain content and materials, including, without limitation, text, and images (“User Content”) through or in connection with the Services, including through any interactive features of the Services. Meltek may (but have no obligation to) monitor, evaluate, alter or remove User Content before or after it appears on the Services. Meltek may disclose any User Content and the circumstances surrounding its transmission to anyone for any reason or purpose. Meltek has no control over, and is not responsible for, any use or misuse (including any distribution) by any third party of any User Content. For purposes of clarity, User retains ownership of User’s User Content. For all User Content provided by User, User hereby grants to us and our affiliates a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable license, without additional consideration to User or any third party, to reproduce, distribute, perform and display, create derivative works of, adapt, modify and otherwise use and exploit such User Content, in any format or media, and for any purpose related to our business or the business of our affiliates (including promotional purposes, such as testimonials, and publishing User Content as such User Content may be modified and compiled by or for us). User further irrevocably waives any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User’s User Content that User may have under any applicable law under any legal theory. By providing User Content via the Services, User affirms, represents, and warrants that: (a) User is the creator and/or owner of the User Content, or has the necessary licenses, rights, consents, and permissions to authorize Meltek to use and distribute User Content as necessary to exercise the licenses granted by User in this Section; (b) User Content, and the use of User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Meltek to violate any law or regulation; and (c) User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.  IF USER CHOOSES TO MAKE ANY OF USER’S USER CONTENT (INCLUDING ANY PERSONAL INFORMATION) OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE SERVICES, USER DOES SO AT USER’S OWN RISK.

10. Feedback
Meltek appreciates feedback on products and services. If User provides Meltek with any ideas, proposals, suggestions or other materials relating to the Services, (“Feedback”), Meltek may use such Feedback in any manner for any purpose without restriction or compensation, and User hereby acknowledges and agrees that such Feedback is not confidential, and that User’s provision of such Feedback is gratuitous and unsolicited and does not place Meltek under any fiduciary or other obligation. By submitting Feedback, User represents and warrants to Meltek that User has all necessary rights in and to such Feedback, to provide such Feedback to Meltek and all information it contains, and that such Feedback does not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information or material.

11. Marks
All trade names, trademarks, service marks and logos on the Services are the property of their respective owners. User is not granted any rights to use any trade names, trademarks, service marks or logos on or in the Services under these Terms.

12. Term and Termination
This Agreement is effective until terminated. Meltek may terminate or suspend User’s use of the Services at any time and without prior notice, for any reason or no reason, including if Meltek believes that User has breached any provision of these Terms. Upon any such termination or suspension, all rights and licenses granted under these Terms, including User’s right to use the Services will immediately cease, and Meltek may, without liability to User or any third party, immediately deactivate or delete User’s user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. 
13. DISCLAIMER OF WARRANTIES
MELTEK PROVIDES NO WARRANTIES RELATING TO THE SERVICES. THE SERVICES AND ALL INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE SERVICES ARE MADE AVAILABLE TO USER “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. MELTEK DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, IS MADE REGARDING ACCURACY, ADEQUACY, COMPLETENESS, LEGALITY, RELIABILITY OR USEFULNESS OF ANY INFORMATION OR CONTENT CONTAINED IN THE SERVICES OR THE RESULTS THAT USER MAY OBTAIN THROUGH THE SERVICES. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF MELTEK, ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS, ASSIGNS AND SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AS WELL AS EACH AFFILIATED ENTITY’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER. MELTEK IS NOT IN THE BUSINESS OF PROVIDING ELECTRICITY OR OTHER UTILITY SERVICES AND IS NOT RESPONSIBLE FOR USER’S ELECTRIC OR OTHER UTILITY SERVICES.

14. LIMITATION OF LIABILITY
MELTEK AND ITS AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES OR FOR ANY DAMAGES FOR LOST PROFITS, LOSS OF USE OF THE SERVICES, LOSS OF DATA, LOSS OF PRIVACY OR SECURITY, LOSS OF OTHER INTANGIBLES, OR UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES, USER’S DATA OR USER CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND EVEN IF MELTEK IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, MELTEK WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM USER’S USE OF OR INABILITY TO USE THE SERVICES. USER’S SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. EXCEPT AS PROVIDED IN SECTION 15 BELOW, THE MAXIMUM AGGREGATE LIABILITY OF MELTEK ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY USER TO MELTEK TO USE THESE SERVICES, OR $100.00, WHICHEVER IS GREATER. ALL DISCLAIMERS, LIMITATIONS, OR EXCLUSIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF THE AFFILIATED ENTITIES AS WELL AS EACH AFFILIATED ENTITY’S LICENSORS, SUPPLIERS AND SERVICE PROVIDERS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO USER. THIS AGREEMENT GIVES USER SPECIFIC LEGAL RIGHTS, AND USER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

15. Indemnity
Except to the extent prohibited under applicable law, User agrees to defend, indemnify, and hold harmless Meltek and the Affiliated Entities and each Affiliated Entity’s licensors, suppliers, and service providers from and against all claims, damages, losses, costs, and expenses (including attorneys’ fees) arising out any violation of these Terms by User. Meltek reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User (without limiting User’s indemnification obligations with respect to that matter), and in that case, User agrees to cooperate with our defense of those claims.

16. Arbitration
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. As used in this Arbitration section, “User” and “User’s” mean the registered user(s) of the Services, and all of his/her heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, predecessors in interests, successors, assigns, as well as all authorized and unauthorized users or beneficiaries of services under this or prior agreements. “Meltek,” “We,” and “Our” shall mean Meltek and shall be deemed to include all of its heirs, survivors, representatives, subsidiaries, affiliates, agents, employees, directors, officers, predecessors in interests, successors, assigns.

(a) Generally. In the interest of resolving disputes between User and Meltek in the most expedient and cost effective manner, and except as described in Sections 16(b) and 16(c), User and Meltek agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is an alternative dispute-resolution procedure that allows us to resolve issues without the formality of going to court. Arbitration is less formal than a lawsuit in court. 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. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, 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. USER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE TERMS, USER AND MELTEK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

(b) Exceptions. Despite the provisions of Section 16(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

(c) Arbitrator. Except where prohibited by law, User and Meltek agree that any and all Claims are to be arbitrated by a single arbitrator. An arbitration commenced pursuant to these Terms shall be administered and governed by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (the “AAA Rules”). To the extent there is any inconsistency between the terms of this Arbitration Section and the AAA Rules the provisions of these Terms shall apply. The AAA Rules, forms and information are available online at www.adr.org.

(d) 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”). Meltek’s address for Notice is: Woods Oviatt Gilman LLP, 1900 Bausch & Lomb Place, Rochester, New York 14604. 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, User or Meltek 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 User or Meltek must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.

(e) Fees.  User may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing. 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.

(f) Class Action Waiver. TO THE MAXIMUM EXTENT PERMITTED BY LAW, USER AND MELTEK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN USER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.  Further, unless both User and Meltek 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.

(g) LIMITATION ON CLAIMS. USER MUST CONTACT MELTEK WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR USER WAIVES THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE. (h) Severability. If all or any provision of this Arbitration agreement is found invalid, unenforceable, or illegal, then User and Meltek agree that the provision will be severed and the rest of the agreement shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the Class Action Waiver is found invalid, unenforceable, or illegal, User and Meltek agree that it will not be severable; the entire Arbitration section will be void and unenforceable and any dispute will be resolved in court subject to the governing law clauses specified in this Agreement. Under no circumstances shall arbitration be conducted on a class basis without Meltek’s express consent. (i) Arbitration Changes. Although Meltek may revise this Agreement in its discretion, Meltek does not have the right to alter this agreement to arbitrate or the rules specified herein with respect to any dispute once that dispute arises. (j) Opt Out. You have the right to opt out of and not to be bound by the arbitration and class action waiver provisions set forth in this Agreement. To exercise this right, you must send written notice of your decision to the following address: Arbitration Opt-Out 2093 Philadelphia Pike, Claymont, DE 19703-2424. Your notice must include your name, mailing address, Meltek account number, and state that you do not wish to resolve disputes with Meltek through arbitration. To be effective, this notice must be postmarked or deposited within 30 calendar days of the date on which you first accepted this Agreement unless a longer period is required by applicable law; otherwise, you will be bound to arbitrate disputes in accordance with this section. You are responsible for ensuring that Meltek receives your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these arbitration provisions, Meltek will not be bound by them with respect to disputes with you.

17. Governing Law
For our U.S. customers, these Terms are governed by and construed under the laws of the State in which the Services are provided, without regard to its principles of conflicts of law, and regardless of User’s location. User and Meltek hereby submit to the personal and exclusive jurisdiction of the state courts and federal courts for resolution of any lawsuit or court proceeding permitted under these Terms.

18. Export Controls
User is responsible for complying with United States export controls and sanctions laws and regulations and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. User represents, warrants and covenants that User is not (i) located in or a resident of any country that is the subject of comprehensive U.S. sanctions (currently Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine/Russia), or that has been designated by the U.S. government as a “terrorist supporting” country; or (ii) on any of the U.S. government lists of prohibited or restricted end users.

19. Miscellaneous
These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between User and Meltek. These Terms shall not be construed as creating third-party beneficiary rights in any person or entity, except as otherwise expressly provided in these Terms. If any provision of these Terms or portion of a provision is held to be unlawful, void or for any reason unenforceable, that provision (or portion of the provision), to the extent required, will be severed from these Terms but such severance will not affect the validity and enforceability of the remaining provisions of these Terms. User may not assign, transfer, or sublicense any or all of User’s rights or obligations under these Terms. Meltek may subcontract, assign, transfer, or sublicense any or all of our rights or our obligations under these Terms without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. These Terms and all other terms and conditions referenced herein constitute the entire agreement between User and Meltek relating to the subject matter of these Terms and supersedes any and all prior or contemporaneous written or oral agreements or understandings between User and Meltek relating to such subject matter. User’s use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services or certain features of the Services that Meltek may post on or link to from the Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. Without limitation, a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Meltek will not be responsible for any delay or failure to fulfill any obligation under these Terms due to any cause beyond its control, including without limitation acts of God, acts of war, civil or military disturbances, terrorism, nuclear or natural catastrophes, earthquake, flood, pandemic or epidemic, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of Internet, communications, or power grid infrastructure. Meltek is under no obligation to provide support for the Services. In instances where Meltek may offer support, the support will be subject to published policies.