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END USER LICENSE AGREEMENT
This End-User License Agreement (“EULA”) is a legal agreement between you (a legal entity, referred herein as “you”, “your”, or “Licensee”) and Broan NuTone LLC, located at 926 West State St., Hartford, WI 53027 USA (“Licensor”) for the Licensor’s software (including mobile applications) that accompanies this EULA or that you download or access after agreeing to this EULA, which may also include associated media, printed materials, and “online” or electronic documentation (collectively the “Software”). Software shall also include all related documentation, and updates and upgrades that replace or supplement the Software and are not distributed with separate license terms.
BY CLICKING THE ACCEPT BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE (DIRECTLY OR THROUGH HARDWARE DEVICES) YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, THEN DO NOT CLICK THE ACCEPT BUTTON, INSTALL, DOWNLOAD, OR USE THE SOFTWARE. IF YOU CLICK THE ACCEPT BUTTON OR INSTALL, DOWNLOAD OR USE THE SOFTWARE, THE TERMS AND CONDITIONS OF THIS EULA ARE FULLY ACCEPTED BY YOU. If you agree to these terms on behalf of any entity or organization, you hereby represent to Licensor that you are authorized to accept these terms on its behalf.
IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, CLICK THE “DECLINE” OR “CANCEL” BUTTON AND DO NOT INSTALL, DOWNLOAD OR USE THE SOFTWARE OR THE HARDWARE THE SOFTWARE IS INSTALLED ON.
- SOFTWARE USE. Upon payment of the applicable fees, whether for the device that Software is installed or embedded in, or through downloading of the App, as set forth in the Licensor’s or dealer’s purchase order document, if any, Licensor grants you the following rights provided that you comply with all terms and conditions of this EULA:
- Licensor Hosted Software. If Licensee has elected to have Licensor host the Software (“Subscription”) and as set forth in the Licensor order document, Licensor grants to Licensee, the nonassignable, nontransferable, nonsublicensable, and nonexclusive right to access the Subscription and use the Subscription and the applicable documentation only as authorized in this EULA. The Subscription will not be provided to you on any other form of media and will not be installed on any servers or other computer equipment owned or otherwise controlled by you. During the Subscription term, Licensor shall provide you with access to the latest supported version of the hosted Subscription, to be accessed and used by you through the use of the internet and provided firmware updates to the device as required. If applicable, Licensor may provide an administrator user account for secure administrator access and provide this administrator user the necessary tools to create other users for access to the Subscription. You agree that you have elected to access the Software through a Subscription and that this EULA confers no right to convert the Subscription to a license as described in Section 1(a) above without Licensor’s prior written consent and applicable fee.
- Embedded Software. If Software is embedded on any hardware device, and pursuant to the Licensor order document or Licensor’s device instructions or documentation if an order document is not applicable, Licensor grants to Licensee a limited, non-exclusive, non-transferable license, without right to sublicense, to use the embedded Software solely on the hardware device originally designed for the Software, in object form only and for such duration as the useful life of the applicable hardware device, and solely for your internal business/household purposes, provided such purpose is in accordance with the permitted uses of the Software as set forth in this EULA and application documentation. You may use the documentation accompanying the Software in connection with permitted uses of the Software. As a condition to access and use the Software, you agree to the additional terms and conditions that accompany the hardware device that Software is embedded on.
- Mobile Applications. If Licensee has elected to download and use any of Licensor’s mobile applications (deemed Software under this EULA), Licensor grants you a limited, non-transferable, revocable license to use the object code of Software on any mobile device that you own or control that the Software is authorized to operate on (as determined by Licensor) and as permitted by this Section 1(e) of the EULA (the “License”). The Software is licensed, not sold, to you for use only under the terms of this EULA. Licensor reserves all rights, title and interest not expressly granted to you. This License does not allow you to use the Software on a device that you do not own or authorized to control. The terms of the License will govern any upgrades (if any) provided by Licensor that replace or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
- TRIAL LICENSES.
- General. If available, the Software may be activated with no-cost evaluation Software License Key(s).
- Evaluation License. If you activate the Software with an evaluation Software License Key (“Evaluation Product”) you may use the Evaluation Product for 30 days (or such other period as agreed in writing by Licensor) (the “Trial Period”) only to evaluate the suitability of the Evaluation Product for licensing on a for-fee basis.
- Trial Periods. If the Software was provided to you at no charge on a trial or evaluation basis, then the Software may be used only for the Trial Period, unless you purchase a further license to the Software at the end of the Trial Period.
- THE EVALUATION PRODUCT IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION PRODUCT THROUGH AND AFTER THE TRIAL PERIOD.
- No Support. Licensor has no duty to provide support to you during your use of the Evaluation Product.
- RESERVATION OF RIGHTS AND OWNERSHIP. The Software is not sold and may only be used under the terms of this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Licensor or its suppliers own the title, copyright, and other intellectual property rights in the Software. Except as expressly stated herein, Licensor and its suppliers reserve all right, title and interest in the Software and all associated copyrights, trademarks, and other intellectual property rights therein. The EULA is limited to the intellectual property rights of Licensor and its suppliers in the Software and does not include any rights to other intellectual property.
- LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software by any means whatsoever, or alter, modify, enhance, or create a derivative work of the Software, except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any free or open sourced components included with the Software. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the software.
- NO RENTAL/COMMERCIAL HOSTING. Except as expressly set forth in Licensor’s order document for authorized dealers, and pursuant to Section 1(a) for hosted Software, you may not rent, lease, lend, sublicense or provide hosting services with the Software for third parties. You may not use the Software to provide commercial services to third-parties except as expressly stated herein and in the related documentation of the Software.
- CONSENT TO USE OF DATA.
- Software Use Generally. You agree that Licensor and its affiliates may collect and use technical and other information gathered during your use of the Software, or as part of the product support services provided to you, if any, related to the Software. Licensor may use this information to improve its products, to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
- TERMINATION. This EULA is effective until terminated. If applicable, the purchase order document agreed to by the parties sets forth the period you are allowed to access and use the Software. If a purchase order document does not apply or does not set forth the term of this EULA, then this EULA is effective for the useful life of the device the Software is initially and originally installed on unless terminated earlier by Licensor or you. Your rights under this EULA will terminate immediately and automatically if you fail to comply with any of the terms and conditions of this EULA. Licensor may terminate this EULA upon notice to you and upon the notice of discontinuance of the Software or Licensor’s recommendation for users to upgrade to newer software. Promptly upon termination, you must cease all use of the Software, destroy all copies of the Software in your possession or control, and, upon request of Licensor, certify such destruction. Licensor’s termination of this EULA will not limit any of Licensor’s other rights or remedies at law or in equity.
- ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates to firmware or Software, supplements, add-on components, or internet-based services components, of the Software that Licensor may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with the update, supplement, add-on component, or internet-based services component. Licensor reserves the right to discontinue any internet-based services provided to you or made available to you through the use of the Software. If Licensor provides Licensee access to any application programming interface or software development kit, Licensee acknowledges and agrees to be bound by those additional terms and conditions that may be included with such software tools.
- UPGRADES. To use Software identified as an upgrade, you must first be licensed for the Software identified by Licensor as eligible for the upgrade. Except as otherwise provided in writing, after upgrading, you may no longer use the Software that formed the basis for your upgrade eligibility. Certain Software upgrades or in-app offers may require you to pay additional license fees or service fees in order to receive such upgrade. Licensor reserves the right to access the Software and devices incorporating the Software at any time to perform firmware or Software updates as required to maintain operation and service of the Software.
- SUPPORT SERVICES NOT INCLUDED; LICENSED PROFESSIONAL. Licensor is not required to provide support services under this EULA, but may do so at its sole discretion. This EULA does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by Licensor at any time in the future. Furthermore, Licensor may offer support services separately, and offer such services for a fee or no cost. Any supplemental software code or related materials that Licensor provides to you as part of any support services are to be considered part of the Software and are subject to the terms and conditions of this EULA. Except for expressly designated consumer products by Licensor, you represent, warrant and covenant that you are a licensed professional and understand how to use and upgrade Software and the applicable hardware and software systems that Software interfaces, and take sole responsibility with the installation and upgrade of such systems. If you are unsure how to install, use or access Licensor products, hardware or this Software, please contact us below and we will recommend an independent, third party that may assist you with the foregoing. If you install the Software or activate such Software on behalf of an end user, individual, or entity, you represent and warrant that you shall provide a copy of this EULA to such individual or entity. Nothing stated in this EULA will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
- EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
- DISCLAIMER OF WARRANTIES.
- USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK AND THE SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND SATISFACTORY QUALITY;
- NEITHER LICENSOR NOR ITS SUPPLIERS WARRANT THAT THE SOFTWARE ARE SUITABLE FOR LICENSEE’S USE, THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY LICENSEE THROUGH THE SOFTWARE WILL MEET LICENSEE’S EXPECTATIONS, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED;
- NEITHER LICENSOR NOR ITS SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; LICENSOR DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE;
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED AS PART OF OR THROUGH THE SOFTWARE IS DONE AT LICENSEE’S OWN DISCRETION AND RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL; AND
- NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS EULA AND NO USE OF ANY PORTION OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
- Disclaimers Regarding Cameras and Security Systems. Cameras and security systems may be compromised or circumvented. Even through the use of cameras and/or security systems, you may still experience losses by burglary, hold-up, fire or otherwise. Any limited warranties that may be included with Licensor products related to the Software do not cover any damage to material or equipment caused by accident, misuse, attempted or unauthorized repair service, modification, or improper installation. You acknowledge that there are additional and more sophisticated equipment and systems that you can purchase for the purposes of security and monitoring.
- Not an Insurer. You acknowledge that Licensor is not an insurer and that you assume all risk of loss to person and property within and upon your premises. Licensor does not guarantee nor represent that no loss or injury to person or property will occur with the use of the Software and related products. Licensor is not assuming liability and therefore shall not be liable to you for any loss or damage to person or property as a result of any cause whatsoever, regardless whether such loss or damage was caused by or contributed to by Licensor or its employees’ performance or failure to perform any obligation under this EULA. In the event of any loss or injury to any person or property, you agree to look exclusively to third parties and your insurer to recover damages. You release Licensor from any claims for contribution, indemnity (not expressly provided for in Section 13(a) above for certain infringement claims) or subrogation.
- No Active Monitoring. You acknowledge that signals transmitted between your devices, Software and premises may or may not be actively monitored by Licensor, and Licensor does not assume any responsibility for the manner in which such signals are received or not received. You acknowledge that signals which are transmitted through the Internet, over telephone lines, wire, air waves, cellular, radio, internet, VOIP, or other modes of communication pass through communication networks wholly beyond the control of Licensor and are not maintained by Licensor, and Licensor shall not be responsible for any failure which prevents transmission signals from reaching any device or monitoring service or damages arising therefrom, or for data corruption, theft or viruses to your devices and computers if connected to an Licensor equipment or devices.
- THIRD PARTY PRODUCTS; INDEMNIFICATION.
- Applicability to Third Party Products. Licensor makes no representations or warranties and provides no indemnification or replacement covenants of any kind with respect to Third Party Products, WHICH MAY BE EMBEDDED, LINKED OR SUPPLIED ALONGSIDE SOFTWARE. Licensor’s sole responsibility as to Third Party Products is to pass through any intellectual property warranties, indemnification and replacement provisions that Licensor receives from the vendors or suppliers of such Third Party Products and which Licensor is allowed to pass on. “Third Party Product” means application software products provided by third party vendors, including operating system and application software with which the Software interfaces and which provides certain functionality essential to the operation of the Software. Licensee represents, warrants and covenants that it shall comply with any and all requirements and conditions of any Third Party Products.
- Indemnification by Licensee. Licensee shall fully indemnify and hold harmless Licensor, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest (each a “Licensor Indemnitee”) from, defend Licensor Indemnitee against, pay any judgments awarded against Licensor Indemnitee, and pay all of Licensee’s and Licensor Indemnitee’s reasonable costs and attorneys’ fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on (i) Licensee’s improper or misuse of the Software (including without limitation, in violation of applicable laws, rules or regulations or this EULA); (ii) Licensee’s breach of this EULA; (iii) any acts or omissions by a Software user through Licensee’s access to the Software; (iv) any breach of this EULA by Licensee; (v) Licensor’s compliance with Licensee’s instructions; (vi) Licensor’s use of trademarks, data, content or other materials supplied by Licensee; or (vii) Licensee’s installation or activation of Software on behalf of any third party.
- OPEN SOURCE DISCLOSURE. The Software may contain free or open source software, and if so, licenses that govern the use and implementation of such open source software shall be set forth in the ‘readme.txt’ (or similar file) included with the Software or accessible through the Software (e.g., an About or Information screen), or as otherwise set forth in the applicable documentation. By accepting the terms of this EULA, you are accepting the terms of the open source license agreements, the link(s) for which are provided in the associated file or documentation, that govern the use of such open source software, including all disclaimers of warranty and limitations of liability set forth therein. Any open source software governed by open source software licenses shipped with, alongside or embedded in Software is not included in the definition of Software.
- EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR OR ANY SUPPLIER, AND EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Licensor and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Licensor) shall be limited to the greater of $50 and the actual, direct damages up to the amount actually paid by you for the Software. The foregoing limitations, exclusions and disclaimers (including Sections 12, 13, 14, and 15) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
- U.S. GOVERNMENT LICENSE RIGHTS. The Software licensed under this EULA are “commercial computer software” as the term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 48 C.F.R. 12.211 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFAR”) and its successors
- APPLICABLE LAW. This EULA will be governed by the laws of the State of Wisconsin, of the United States of America, without regard to its choice of law principles, as applied to agreements entered into and to be performed entirely in the State of Wisconsin. Unless expressly waived by Licensor in writing for the particular instance or contrary to local law, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the Wisconsin state and federal courts having within their jurisdiction in Milwaukee County. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Wisconsin or federal law. The parties agree that this EULA is not a contract for the sale of goods; therefore, this EULA shall not be governed by any codification of Article 2 or 2A of any Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (UCITA), or any references to the United National Convention on Contracts for the International Sale of Goods.
- ENTIRE AGREEMENT; SEVERABILITY. This EULA sets forth Licensor’s entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. You acknowledge that this EULA is a complete statement of the agreement between you and Licensor with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software. No amendment to or modification of this EULA will be binding unless made in writing and signed by Licensor. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect the invalid, unenforceable or illegal provision shall be amended to achieve as closely as possible the effect of the original term.
- INJUNCTIVE RELIEF. You agree that a breach of this EULA adversely affecting Licensor’s proprietary rights in the Software may cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and Licensor shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
- No Assignment. Licensee may not assign or otherwise transfer this EULA or the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Licensor, which consent may be withheld in Licensor’s sole discretion; and any attempted transfer or assignment is null and void and shall be deemed a material breach of this EULA.
- CONFIDENTIAL INFORMATION. You acknowledge and agree that the Software and all information emanating from the Software and Licensor’s business in any form are valuable trade secrets of Licensor and “Confidential Information.” You agree that you will not, during or after the term of this EULA, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than your employees, agents or representatives), unless such duplication, use or disclosure is specifically authorized by Licensor in writing prior to any disclosure. You shall use reasonable diligence, and in no event less than that degree of care that you use in respect to your own confidential information of like nature, to prevent the unauthorized disclosure or reproduction of the Confidential Information. Without limiting the generality of the foregoing, to the extent that this EULA permits the copying of Confidential Information, all such copies shall bear the same confidentiality notices, legends, and intellectual property rights designations that appear in the original versions and party shall keep detailed records of the location of all Confidential Information. Licensee shall not make any formal public announcements relating to this EULA (e.g., a press release) without the prior written approval of Licensor, unless otherwise required by law.
- Electronic Communications; Notices. You hereby agree to the use of electronic communications in order to enter into this EULA, to create other records and to the electronic delivery of notices, policies and records of transactions between you and Licensor with respect to the Software and this EULA. You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. In addition, Licensor may deliver notices to you by prepaid certified mail, return receipt requested at the address in Licensor’s database; any notice that complies with this Section shall be deemed effectively given upon delivery. Any notice you provide to Licensor must be given by prepaid certified mail, return receipt requested at the address at the top of this EULA.
- SURVIVAL. The provisions of this Section 24 and Sections 3 - 7, 12, and 15 - 23 shall survive termination or expiration of this EULA, for any reason.