Privacy Policy

This Privacy Policy describes the practices of Encompass Home Warranty Inc. ("we," "us," "our") regarding the collection, use, and disclosure of Personal Information about residents of the United States through both online and offline interactions with you and how you can exercise your privacy rights under each state’s comprehensive privacy legislation (collectively, “U.S. Privacy Laws”). Please note that this Privacy Policy does not apply to individuals with whom we interact in an employment-related context or a business context.

1. Definitions

·       "Program" means the Encompass Home Repair Services Program, designed and managed by Encompass Home Warranty Inc.

·       “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Consumer or household.

·       “Claim” means requesting home system repair services under the Program.

·       “Third Party” means any non-affiliated person that is not a Vendor. Not necessary

“Vendor” means a service provider, contractor, or processor that collects, stores, or otherwise handles data for us and is bound by contractual obligations to use your Personal Information only as directed by us.

·       "You" means any individual who has enrolled in the Program

2. Collection & Processing of Personal Information

We, and our Vendors, collect and have collected in the past 12 months only the Personal Information that we require to administer your enrollment in the Program and any Claims you make thereunder.  Such information includes the following categories of Personal Information about you: name, address, email address, telephone numbers, mortgage account number and any other information that may be directly pertinent to any Claim you may have.  Information that we collect to make a payment to or for you, which would be associated with your Claim, will be for one-time use only and will not be stored by us.

We never disclose your Personal Information to anyone else except as required by law or court order.

Children’s Personal Information. We generally do not knowingly collect or process Personal Information of children under 13 years of age. If and when we do so, we comply with the Children’s Online Privacy Protection Act (“COPPA”).

Retention of Personal Information. We retain your Personal Information for the period reasonably necessary to provide goods and services to you and for the period reasonably necessary to support our business operational purposes listed in Section 2.

3. Data Subject Rights

Residents who reside in states with U.S. Privacy Laws have the following rights regarding our collection and use of the Personal Information, subject to certain exceptions. Please read this section carefully, as some rights vary by state.

• Rights that Require Verification. You may exercise the data subject rights below by contacting our Privacy Officer at kprice@encompasshomeservice.com and submitting details regarding your request. You may also authorize an agent to make data subject requests on their behalf. In such instances, authorized agents may use the same methods you use to submit the requests on your behalf. To verify your identity and protect your Personal Information, we may ask the requestor to provide information that will enable us to verify your identity to comply with your data subject request, such as asking your agent to provide proof of signed permission from you or ask you to confirm with us directly that you provided the agent with permission to submit the request. Sometimes, we may decline to honor your request if an exception applies under applicable law. We will respond to your request in a manner consistent with applicable law.

  • Right to Know: You have the right to know the following details about our privacy practice at or before the point of collection. We have provided such information in this Privacy Notice. You may also request that we provide you with information about the following aspects of how we have handled your Personal Information specifically in the 12 months preceding your request:

    • The categories of Personal Information we have collected about you;

    • From where we collected such Personal Information;

    • The length of time we intend to retain each category of Personal Information, or if that is not possible, the criteria used to determine that period.

o   Right to Deletion: You may request that we delete any Personal Information about you that we collected from you. Sometimes, we may decline to honor your request if an exception applies under applicable law. We will respond to your request in a manner consistent with applicable law.

• Right to Correction: You may request that we correct any inaccurate Personal Information we maintain about you. Please note that this right does not apply to Iowa and Utah residents.

• Right to Access Specific Pieces of Personal Information and Data Portability: You may ask to obtain the specific pieces of Personal Information we have collected about you in a portable and, to the extent technically feasible, readily usable format that allows you to transmit the Personal Information to another entity without hindrance. You may not exercise this right more than twice a calendar year.

• Rights that Do Not Require Verification. You may exercise these rights through the “Your Privacy Choice” link below or at the [header/footer] of every page on our website.

·       Non-Discrimination. We will not discriminate against you for exercising your data subject rights. For example, we will not deny goods or services to you, charge you different prices or rates, or provide a different level of quality for products or services because you exercise your data subject rights.

·       Appeals. Residents of certain states have the right to appeal our decisions on their data subject requests. This section does not apply to California or Utah residents or to residents who reside in other states where the applicable U.S. Privacy Law does not give them the right to appeal Controllers’ decisions regarding data subject rights. To appeal our decision on your data subject requests, you may contact our Privacy Office at kprice@encompasshomeservice.com or by calling 1-866-220- 2120. Please enclose a copy of or otherwise specifically reference our decision on your data subject request so that we may adequately address your appeal. We will respond to your appeal in accordance with applicable law. 

4. Accountability & Purpose for Collection of Personal Information

We are accountable for the manner in which all personal information is handled, treated, stored, and disclosed. The purposes for which we collect and use your personal information are (i) to administer your enrollment in the Program, (ii) to arrange for the collection of your fees when due, (iii) to adjudicate and administer any Claim you may have, and (iv) to communicate with you about the Program. We may also use your Personal Information as otherwise permitted or required by law.

We have reasonable security measures in place to protect your personal information against loss, misuse, and interception by third parties. We will retain your information only for the time required and for the purposes we have disclosed.

We have educated our staff and sub-contractors regarding our privacy policy and their role and responsibilities in keeping personal information private, and we have appointed a Privacy Officer to oversee privacy issues.

All comments, questions, or concerns regarding your personal information or our Privacy Policy, should be forwarded to our Privacy Officer in writing:

Attn: Privacy Officer
Encompass Home Warranty Inc.

50 Fountain Plaza, Suite 1400

Buffalo, NY  14202

e-mail: kprice@encompasshomeservice.com

We will inform you of the relevant procedures when you make an inquiry or lodge a challenge or complaint.

5. Limiting Use and Disclosure 

We do not disclose your personal information to anyone who is not directly involved in administering your enrollment or responding to your Claim.

We ensure that any third parties engaged to perform services in connection with the Program and who are provided with personal information are required to observe the intent of this Privacy Policy and follow the related practices that we dictate.

6. Record Keeping

We will keep a record of your personal information, correspondence, or comments in a file specific to you. We will utilize, disclose, or retain your personal information for as long as necessary to fulfill the purposes for which it was collected and as permitted or required by law.

We will ensure that your personal information is kept as accurate, complete, and up-to-date as possible based on information provided to us by you or by third parties who gave us information about you with your consent.

7. Openness

If you have any questions about how your personal information is stored, handled, or shared, feel free to contact our Privacy Officer.

8. Responding to Requests for Information

We will make available to you any personal information that we have collected about you, utilized or disclosed, upon your written request, to the extent permitted or required by law.

You can challenge the accuracy or completeness of the information we have about you at any time. Once we have validated your identity, we will make the necessary changes to our records. Where appropriate, we will transmit the amended information to third parties having access to your personal information.

9. Changes to the Privacy Notice

We reserve the right to amend this Privacy Notice at our discretion and at any time. When we make material changes to this Privacy Notice, we will notify you by posting an updated Privacy Notice on our website and listing the effective date of such updates.

Terms of Use

Thanks for visiting this website, which is owned by Encompass Home Warranty Inc. ("Encompass" or the “Company”). These Terms of Use govern your use of this Site.

PLEASE READ THESE TERMS OF USE CAREFULLY. THESE TERMS OF USE INCLUDE AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THESE TERMS OF USE AFFECT YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND DISCOVERY PROCEDURES AND APPELLATE RIGHTS ARE MORE LIMITED THAN IN COURT.

Questions About These Terms of Use

If you have any questions about these Terms of Use, please contact us by email at kprice@encompasshomeservice.com or by mail at:

Encompass Home Warranty Inc.

50 Fountain Plaza, Suite 1400

Buffalo, NY  14202

Your Consent to These Terms of Use

By accessing or using this Site, or registering for and using MyEncompass, you are agreeing to comply with and be bound by these Terms of Use. If you do not agree to these Terms of Use, you may not use this Site or MyEncompass.

Your Consent to our Online Privacy Policy

Our online Privacy Policy describes our data practices as they relate to information collected through this Site. Our Privacy Policy is an integral part of and is incorporated into these Terms of Use. Accordingly, by agreeing to these Terms of Use you are consenting to the processing of your data as described in the Privacy Policy.

Your Consent to Other Agreements

When you sign up to use a special feature of this Site, you may be asked to agree to special terms governing your use of the special feature. In such cases, you may be asked to expressly consent to the special terms, for example, by checking a box or clicking on a button marked “I agree.” This type of agreement is known as a “click–through” agreement. If any of the terms of the click–through agreement are different than the terms of these Terms of Use, the terms of the click-through agreement will supplement or amend these Terms of Use, but only with respect to the matters governed by the click-through agreement.

These Terms of Use May Change

Encompass reserves the right to update or modify these Terms of Use at any time and without prior notice, by posting the revised version of the Terms of Use on this Site with a new “Last Updated” date. Your use of this Site following any such change constitutes your agreement to the revised Terms of Use. You may access the current version at any time by clicking on the link marked “Terms of Use” at the bottom of each page of the public areas of this Site.

Definitions

The term “Content” refers to all of the software and code comprising or used to operate this Site, and all of the text, photographs, images, illustrations, graphics, sound recordings, video and audio-video clips, and other materials available on this Site.

The term “Feedback” refers to the Content you post on or through this Site that is specifically about how we can improve this Site and the products and services we make available through this Site.

The terms “Encompass,” “Company,” “we,” “us,” and “our” refer to Encompass Home Warranty Inc.

References to this “Site” refer to the website or mobile application (“app”) owned by Encompass on which these Terms of Use are posted.

The term “Terms of Use” refers to this Site’s Terms of Use.

The terms “User-Generated Content” or “UGC” refer to all of the materials that you post on or through this Site using the social-networking or product-review tools we make available to you and that does not constitute Feedback.

Ownership of this Site and its Content

This Site, including all of its Content, is protected under applicable intellectual property and other proprietary laws, including without limitation those of the United States. All Content and intellectual property rights therein is the property of Encompass, or the Content is included with the permission of the rights owner and is protected pursuant to applicable copyright and trademark laws.

The presence of any Content on this Site does not constitute a waiver of any right in such Content. You do not acquire ownership rights to any such Content viewed through this Site. Except as otherwise provided herein, none of this Content may be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without our express prior written permission.

Permission is hereby granted to the extent necessary to lawfully access and use this Site and to display, download, or print portions of this Site on a temporary basis and for your personal, noncommercial use only, provided that you (i) do not modify the Content; (ii) you retain any and all copyright and other proprietary notices contained in the Content; and (iii) you do not copy or post the Content on any network computer or broadcast the Content in any media.

Trademarks

The Encompass names and logos, all product names, all page headers, all custom graphics, all button icons, and all trademarks, service marks and logos appearing on this Site, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of Encompass (the “Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress mentioned, displayed, cited or otherwise indicated on the Site are the property of their respective owners. You are not authorized to display or use the Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks and/or trade dress of other owners featured on this Site without the prior written permission of such owners. The use or misuse of the Marks or other trademarks, product names, company names, logos, service marks and/or trade dress or any other materials contained herein, except as permitted herein, is expressly prohibited.

Responsibility for User-Generated Content Posted on or Through this Site

You are responsible for UGC that you post: Under no circumstances will we be liable in any way for any UGC. This means that you, not Encompass, are entirely responsible for all UGC that you post and that you can be held personally liable for comments that are defamatory, obscene, or libelous, or that violate these Terms of Use, an obligation of confidentiality, or the rights of others. If any part of the UGC you post is not your original work, it is your responsibility to obtain any necessary permission to post it.

Because we do not control the UGC posted on or through this Site, we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that UGC. You also agree and understand that by accessing this Site, you may encounter UGC that you may consider to be objectionable. We have no responsibility for any UGC, including without limitation any errors or omissions therein. We are not liable for any loss or damage of any kind you may claim was incurred as a result of the use of any UGC posted, emailed, transmitted or otherwise made available on or through this Site. The UGC posted on or through this Site expresses the personal opinions of the individuals who posted it and does not necessarily reflect the views of Encompass or any person or entity associated with Encompass. You own UGC, but we may use it: You own the copyright in any original UGC you post. We do not claim any copyrights in UGC. However, by using this Site you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty–free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain repurpose, and commercialize UGC you post in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same. For this reason, we ask that you not post any UGC that you do not wish to license to us, including any photographs, videos, confidential information, or product ideas.

We may disclose and/or remove UGC:

Encompass has certain rights.

We have the right (but do not assume the obligation) to:

·       monitor all UGC;

·       at any time without notice, remove or block any UGC that we deem to be confidential, private, unlawful, inappropriate, off-topic, or clearly false or misleading,

·       disclose any UGC and the identity of the user who posted it in response to a subpoena or whenever we believe that disclosure is appropriate to comply with the law or a court order, to prevent or investigate a possible crime or other violation of law, to protect the rights of Encompass or others, or to enforce these Terms of Use; and

·       terminate your access to and use of this Site for any reason or no reason, or to modify, edit or block your transmissions that violate these Terms of Use. You agree that our exercise of such discretion shall not render us the owners of UGC you post, and that you will retain ownership thereof as described above.

Restrictions on UGC

It is a condition of these Terms of Use that you do not upload, post, transmit or otherwise make available:

·       any UGC that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, indecent, or invasive of another’s privacy;

·       any UGC that inappropriate with respect to the race, gender, sexuality, ethnicity, or other intrinsic characteristic of another person or group;

·       any UGC that constitutes or encourages activity illegal under criminal or civil law;

·       any UGC that is false, misleading, or fraudulent;

·       any UGC on a particular Site page that is unrelated to the goods or services we offer through that page;  

·       any UGC that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);

·       any UGC that violates or infringes upon the rights of others, including UGC which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;

·       any UGC that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least eighteen years old and you have first obtained his/her express permission or (ii) that person is under eighteen years old but you are his/her parent or legal guardian;

·       any request for or solicitation of any personal or private information from any individual;

·       any request for or solicitation of money, goods, or services for private gain;

·       any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or any UGC that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;

·       any UGC or other information that impersonates any person or entity or falsely states or otherwise misrepresents your affiliation with a person or entity; or.

·       any UGC, material, or information that violates any local, state, national or international law, rule or regulation.

By posting UGC, you represent and warrant that (i) you own or otherwise control all of the rights to the UGC and have the right to grant the license set forth in these Terms of Use; (ii) the UGC is accurate, and (iii) you are at least eighteen years old and you have read and understood – and your UGC fully complies with – these Terms of Use and applicable laws and will not cause injury to any person or entity.

Removal of Content

In general: You can report objectionable UGC by contacting us using the information provided above. While we do not have any obligation to remove UGC from this Site merely because of a removal request, we will review all such requests and will remove UGC that we determine should be removed, in our sole discretion and in accordance with these Terms of Use and applicable law. Please be aware, however, that if the UGC has already been distributed to other websites or published in other media, we will not be able to recapture and delete it. Also, a back–up or residual copy of the UGC we remove from our Sites may remain on back–up servers.

Violation of copyrights: Encompass does not knowingly violate or permit others to violate the copyrights of others. We will promptly remove or disable access to material that we know is infringing or if we become aware of circumstances from which infringing activity is apparent.

If you are requesting removal of content because of a violation of your copyrights, please note that the Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your own work, or the work of a third party for whom you are authorized to act, is featured on our Sites or has been otherwise copied and made available on our Sites in a manner that constitute copyright infringement, please notify us immediately. Your notice must be in writing and must include:

·       an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest;

·       a description of the copyrighted work that you claim has been infringed;

·       a description of where the material that you claim is infringing is located on our Site(s) (including the URL, title and/or item number if applicable, or other identifying characteristics);

·       your name, address, telephone number, and email address, and, if you are not the owner of the copyright, the name of the owner;

·       written statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

·       a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Please send your statement to:

kprice@encompasshomeservice.com

Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident.

Your Feedback

Although we do not claim ownership of UGC, the Feedback you provide to us will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.

Disclaimer of Warranties

WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SITE OR ITS CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE. THIS SITE AND ALL OF ITS CONTENT ARE PROVIDED FOR USE “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES: (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) RELATING TO THE SECURITY OF THE SITE; (C) THAT THE CONTENT OF THE SITE IS ACCURATE, COMPLETE, OR CURRENT; OR (D) WITH RESPECT TO THIS SITE, ITS CONTENT, ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE, AND ANY SITE WITH WHICH IT IS LINKED.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THIS SITE, ITS SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THIS SITE WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES). WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT APPEARING ON THIS SITE.

WE DO NOT REPRESENT OR WARRANT CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OR USE OF THIS SITE. YOU ACCEPT THAT OUR SHAREHOLDERS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES SHALL HAVE THE BENEFIT OF THIS CLAUSE.

Without limiting the foregoing, certain products offered on this Site may be covered by a manufacturers’ product warranty, and the limitations and disclaimers set forth herein will not limit or restrict any such warranty.

Exclusion of Liability

WE ARE NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY UGC. ALTHOUGH WE INCLUDE STRICT PROVISIONS REGARDING UGC IN THESE TERMS, WE DO NOT CONTROL AND ARE NOT RESPONSIBLE FOR WHAT USERS POST USING THE WEBSITES AND ARE NOT RESPONSIBLE FOR ANY OFFENSIVE, INAPPROPRIATE, OBSCENE, UNLAWFUL, INFRINGING, OR OTHERWISE OBJECTIONABLE OR ILLEGAL UGC YOU MAY ENCOUNTER IN CONNECTION WITH YOUR USE OF THE WEBSITES.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS WE, ON BEHALF OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES; LOSS OF USE; LOSS OF DATA; LOSS CAUSED BY A VIRUS OR MALICIOUS CODE; LOSS OF PRIVACY; LOSS OF INCOME OR PROFIT; LOSS OF OR DAMAGE TO PROPERTY; CLAIMS OF THIRD PARTIES; OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE OR ANY WEBSITE WITH WHICH THEY ARE LINKED, OR ANY MERCHANDISE AVAILABLE ON THIS SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER BASIS.

IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE RELEASED PARTIES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).

These Terms of Use give you specific legal rights and you may also have other rights which vary from country to country. Some jurisdictions do not allow certain kinds of limitations or exclusions of liability, so the limitations and exclusions set out in these Terms of Use may not apply to you. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the limitations and exclusions set out in these Terms of Use shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. Your statutory rights as a consumer, if any, are not affected by these provisions, and we do not seek to exclude or limit liability for fraudulent misrepresentation.

Links to Sites Operated by Third Parties

This Site may provide links to websites operated by third parties. We are not responsible for examining or evaluating, and we do not warrant the products or offerings of, any of these businesses or individuals or the accuracy or content of their websites. We do not assume any responsibility or liability for the actions, product, and content of any other sites. Before you use any site, you should review the applicable conditions of use and policies. The inclusion of a link in this Site does not imply our endorsement of any other site. If you decide to access linked third-party websites, you do so at your own risk.

Indemnity

You agree to indemnify and hold Encompass, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of this Site in violation of these Terms of Use and/or arising from a breach of these Terms of Use and/or any breach of your representations and warranties set forth above and/or if any material that you post using this Site causes us to be liable to another. We reserve the right to defend any such claim, and you agree to provide us with such reasonable cooperation and information as we may request.

Governing Law and Venue

These Terms of Use and your access to and use of the Sites shall be governed by construed, and enforced in accordance with the laws of the State of Illinois, without regard to conflict of law rules or principles (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration shall be resolved in the Illinois state courts in Cook County, Illinois or, if federal subject matter jurisdiction exists, in the United States District Court for the Northern District of Illinois, Eastern Division.

Arbitration Agreement with Class Action Waiver

1.    Disputes that Must Be Arbitrated

This agreement applies to any “Dispute” between you and Encompass. “Dispute” means any dispute, claim, or controversy (excluding those exceptions listed below) between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either of us seeks legal recourse, including the validity, enforceability, or scope of this agreement to arbitrate or any portion of it.

The exceptions to this arbitration requirement are: (i) claims that can be brought as individual actions in small-claims court; (ii) pursuit of enforcement actions through a government agency if the law allows; (iii) an action to compel or uphold any prior arbitration decision; (iv) your or Company’s right to seek injunctive relief in a court of law to preserve the status quo while an arbitration proceeds; (v) claims of intellectual property infringement; (vi) claims that are the subject of a proposed class or collective action settlement in any court; (vii) the enforceability of the requirement that arbitrations must be conducted on an individual rather than a class basis; and (viii) certain roles expressly specified for courts in the terms below.

2.    Informal Resolution

If you have a Dispute against Company or if Company has a dispute against you, Company will attempt to resolve the Dispute informally before an arbitration is filed in order to resolve the Dispute faster and reduce costs for both parties. You and Company will make a good-faith effort to negotiate the resolution of any Dispute for at least 30 days (“Informal Resolution”) from the day you or Company receive a written notice of a dispute from the other party (a “Notice of Dispute”) in accordance with these Terms.

You must send any Notice of Dispute to the following address:

Encompass Home Warranty Inc.

Attn:  Legal Department

50 Fountain Plaza, Suite 1400

Buffalo, NY  14202

Company will send any Notice of Dispute to your registered email address and ATTN: NOTICE OF DISPUTE to the email address and any address you have provided Company. The Notice of Dispute sent by either party must include the sender’s name, address, and other contact information, a description of the Dispute (including any relevant account names), and what resolution to the Dispute is being sought.

The Notice requirement is designed to allow Company (or you, in the case of a dispute Company asserts against you) to make a fair, fact-based offer of settlement if Company or you choose to do so. You and Company cannot proceed to arbitration unless this information has been provided. If you or Company proceed to arbitration without providing a compliant Notice of Dispute, the sufficiency of a Notice of Dispute is an issue to be decided by a court. A court may enjoin the filing of an arbitration demand that has not been preceded by a compliant Notice of Dispute and may order a party that has filed an arbitration demand without having provided a compliant Notice of Dispute to reimburse the other party for any arbitration fees and costs already incurred.

3.    Small-Claims Court

You and Company agree that notwithstanding the obligation to arbitrate Disputes, Disputes that qualify for small-claims court in either the county where you live or in Cook County, Illinois may be brought as individual actions in such small-claims courts.  Company hopes you’ll try Informal Resolution first, and you must do so before commencing an arbitration, but you don’t have to complete the Informal Resolution process before going to small-claims court.

4.    Binding Individual Arbitration

THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. Under no circumstances does Company consent to have any Disputes arbitrated using class action procedures, even if the arbitration provider has rules permitting class arbitrations.

You and Company agree that Disputes will be settled by binding individual arbitration conducted by JAMS, Inc. (“JAMS”), according to the U.S. Federal Arbitration Act (“FAA”) and federal arbitration law and according to the JAMS Streamlined Arbitration Rules and Procedures, as modified by these Terms.  These Terms affect interstate commerce, and the enforceability of this Section 4 will be substantively and procedurally governed by the FAA, 9 U.S.C. § 1, et seq., to the extent permitted by law.

“Arbitration” means that Disputes between you and Company will be resolved by a neutral arbitrator instead of in a court by a judge or jury.

“Individual” means that the arbitrator may award the same remedies to you or to Company as a court could, but only to satisfy your or Company’s individual claims. To the fullest extent allowed by applicable law, the arbitrator may not award money or other relief for the benefit of any person other than you or us as part of the resolution of any Dispute.

“Binding” means that both you and Company will have to live with the arbitrator’s decision, except to the limited extent appeals to a court are permitted under the FAA. As limited by the FAA, these Terms, and the rules applicable to the arbitration, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms, but (as provided above) only to the extent necessary to provide relief to a party in arbitration warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.

5.    Arbitration Procedure and Location

You or Company may initiate arbitration of any Disputes not resolved by Informal Resolution by filing a Demand for Arbitration with JAMS in accordance with the JAMS Streamlined Arbitration Rules and Procedures. Instructions for filing a Demand for Arbitration are available at www.jamsadr.com or 1-800-352-5267.  You will send a copy of any Demand for Arbitration to the following address:

Encompass Home Warranty Inc.

Attn:  Legal Department

50 Fountain Plaza, Suite 1400

Buffalo, NY  14202

Company will send any Demand for Arbitration to the email address and to any address you have provided Company.

The arbitration will be conducted by a single arbitrator. You and Company both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by these Terms.

For Disputes in which the claimant seeks less than $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required, and you reside in the United States, the hearing will take place in Cook County, Illinois unless the arbitrator determines that this would pose a hardship for the claimant, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.

The arbitrator (not a judge or jury) will resolve the Dispute. Unless you and Company agree otherwise, any decision or award will include a written statement stating the decision of each claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.

To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are Individual to you or Company to satisfy one of our individual claims (that the arbitrator determines are supported by credible relevant evidence).

An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself.

Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.

6.    Consumer Arbitration Fees

The terms of this section only apply to you if you are a Consumer.

If you start an arbitration against Company, you will pay the filing fee required for consumer arbitrations. In some situations, Company will help you with the fees related to an arbitration you initiate against Company to (hopefully) move us to a resolution quickly and fairly:

·      If the Dispute involves a claim of damages of USD $5,000 or less, including any attorneys’ fees and all other relief you are seeking, Company will pay all the arbitration costs, including the fees you otherwise would have been required to pay.

·      Even if the Dispute involves a claim of damages of more than USD $5,000, Company may still help you with your fees: if you demonstrate that arbitration costs will be prohibitive compared to litigation costs, Company will pay as much of your arbitration costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation).

·      Notwithstanding Company’s agreement to pay all of the arbitration costs if the Dispute involves a claim of damages of USD $5,000 or less, Company will not pay a claimant’s share of fees if the claimant is represented by the same common or coordinated counsel as other claimants with similar claims unless the total aggregated claim of damages is USD $5,000 or less for all claimants.

If Company starts an arbitration against you, Company will pay all filing fees.

Arbitration costs do not include your attorneys’ fees and expenses if you choose to be represented by an attorney. If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise.

7.    Notice and Filing

To the fullest extent permitted by applicable law, you or Company must start arbitration of a Dispute within two (2) years from when the Dispute first arose. If applicable law requires you or Company to bring a claim for a Dispute sooner than two years after the Dispute first arose, that shorter deadline applies instead. The failure to begin arbitration regarding a Dispute within the time frames described above in this section shall bar the Dispute, which means that to the fullest extent permitted by applicable law, you and Company will not have the right to assert the Dispute.

8.    Coordinated Filings

If 25 or more Disputes are initiated with the arbitrator that raise similar claims, and counsel for the claimants are the same or coordinated, these will be considered “Coordinated Cases.” Company will pay only its share of arbitration fees for Coordinated Cases; the claimants will be responsible for their share of those fees as set by the Rules and JAMS’s fee schedule for mass arbitrations. Applicable statutes of limitations will be tolled for all claimants who have provided compliant Notices of Dispute to Company, but demands for arbitration in Coordinated Cases shall only be filed with the arbitration provider as permitted by the bellwether process set forth below, and Company shall not be required to pay any fees associated with cases that this agreement does not allow to be filed.

Once all Notices of Dispute have been provided to Company for Coordinated Cases, counsel for claimants and counsel for Company shall confer in good faith regarding the number of cases that should proceed as bellwethers, to allow each side to test the merits of its arguments, before the remainder of claims may be filed with the arbitration provider. Any number chosen must be an even number so as to allow each side to designate its half of the cases selected for bellwether trials. If counsel for claimants and for Company do not agree on the number of bellwethers, the number shall be chosen by the arbitration provider as an administrative matter (or, in the arbitration provider’s discretion, by a process arbitrator). Factors that the arbitration provider may consider in making this decision include the complexity of the dispute and differences in facts or applicable laws among various claims. Once the number of bellwethers is fixed, by agreement or by the arbitration provider, each side shall select half that number from among the claimants who have provided compliant Notices of Dispute, and only those chosen claims may be filed with the arbitration provider. You agree that if your case is among Coordinated Cases filed against Company, resolution of your personal claim might be delayed by this bellwether process. Nothing in this paragraph shall be construed to delay the resolution of uncoordinated Disputes based on similar claims to Coordinated Cases filed against Company. 

A single arbitrator shall preside over each Coordinated Case chosen for a bellwether proceeding, and only one Coordinated Case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.

Once all bellwether trials have concluded (or sooner if the counsel for the claimants in the Coordinate Cases and Company agree), the parties must make a good-faith effort to resolve all remaining cases that were not chosen for a bellwether proceeding by engaging in a single mediation of all remaining cases. Each side shall pay half the applicable mediation fee. Counsel for claimants in the Coordinated Cases and for Company must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If counsel for claimants in the Coordinated Cases and for Company cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. Counsel for the claimants in the Coordinated Cases and for Company will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

If the mediation does not yield a global resolution, then claimants in Coordinated Cases who provided compliant Notices of Dispute but whose claims were not resolved in bellwether proceedings shall no longer have the right to arbitrate their Dispute. Instead, outstanding claims from such cases may be filed only in the state courts in Cook County, Illinois or if federal jurisdiction exists, in the United States District Court for the Northern District of Illinois, and you consent as part of these Terms to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Company from removing a case from state to federal court if removal is allowed under applicable law. To the extent you are asserting the same claims as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and Company reserves the right to contest class certification at any stage of the litigation and on any available basis.

A court shall have authority to enforce this bellwether process and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

9.    Continuation in Effect

The dispute resolution process set forth in this agreement survives the termination of any other agreement between you and Company.

10. Future Terms Changes

Although Company may revise these dispute resolution terms in its discretion, Company does not have the right to alter this agreement, or the arbitration rules specified herein, with respect to any Dispute once that Dispute arises if such change would make arbitration procedures materially less favorable to the claimant.  The question of whether a change is materially less favorable to the claimant shall be decided by the arbitration provider as a process matter.

11. Class Action Waiver

To the maximum extent permitted by applicable law, disputes, claims, and controversies not subject to the requirement to arbitrate (including, but not limited to, claims filed in small claims court and claims that are deemed not subject to the requirement to arbitrate) may not be aggregated together in a class action, except that (as set forth above in Section 8) if a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and Company reserves the right to contest class certification at any stage of the litigation and on any available basis.  Accordingly, to the maximum extent permitted by applicable law, you and Company will only bring disputes, claims, or controversies between Company in an individual capacity only and shall not:

·      seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (like private attorney general actions); or

·      consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to these Terms.

12. Severability

If all or any provision of this agreement is found invalid, unenforceable, or illegal, then you and Company agree that the provision will be severed, and the rest of these terms shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the prohibition on class arbitrations is found invalid, unenforceable, or illegal, you and Company agree that this entire agreement to arbitrate (but not the separate class action waiver) will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of law clauses specified herein.

13. Your 30-Day Right to Opt Out

You have the right to opt out of and not to be bound by the Binding Individual Arbitration provisions set forth in these Terms (except for the class action waiver, which is not subject to an opt-out). To exercise this right, you must send written notice of your decision to the following address:

Encompass Home Warranty Inc.

Attn:  Legal Department

50 Fountain Plaza, Suite 1400

Buffalo, NY  14202

Your notice must include your name, mailing address, and email address associated with your account with Company, and state that you do not wish to be bound by the Binding Individual Arbitration provisions set forth in these Terms. TO BE EFFECTIVE, THIS NOTICE MUST BE POSTMARKED OR DEPOSITED WITHIN 30 DAYS OF THE DATE ON WHICH YOU FIRST ACCEPTED THESE TERMS 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 Company 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 provisions, Company will not be bound by them with respect to disputes with you.

Waiver

Our failure at any time to require performance of any provision of these Terms of Use or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by any of us of any breach of any provision of these Terms of Use or of any right provided for herein shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms of Use.

Severability

If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Use shall remain in full force and effect.

Entire Agreement

These Terms of Use, together with our Privacy Policy and any applicable privacy notice or click-through agreement, contain the entire understanding and agreement between you and us with respect to this Site and supersede all previous communications, negotiations and agreements, whether oral, written, or electronic between you and us with respect to this Site.