VENSTAR-END USER LICENSE AGREEMENT
By using or accessing the hardware, including its electrical components and plastic design, and software embedded on or related to this Venstar product (the “Product and Product Software”) including, but not limited to, use or access to (a) including, the websites located at Venstar.com, Skyportcloud.com, skyport.io and each of their sub-domains, and any other domain(s) owned by Venstar (each, a “Site”), (b) services through the Site and any updates thereto (“Site Services”), and (c) application(s) (“app(s)”) or software related to the Site that may be downloaded to your mobile device and any updates thereto (“Mobile Software”), (d) the software that is embedded on the Venstar product (“Embedded Software”) and ‘ (e) any application programming interface provided in the software for any “Site”, “Mobile Software” or "Product and Product Software” (“API”) (collectively and inclusive of the Site, Site Services, Mobile Software, Embedded Software and/or any API referred to hereinafter as the “Product and Product Software”), you are agreeing to the terms of this End User License Agreement (“EULA”) between you and Venstar, Inc. (“Venstar ” or “we”).
IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT OR PRODUCT SOFTWARE, AND YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING VENSTAR.
FURTHERMORE, BY INSTALLING AND/OR USING THE PRODUCT HARDWARE OR SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE PRODUCT HARDWARE OR ANY OF THE PRODUCT SOFTWARE.
This EULA governs your access and use of the Product and Product Software. This EULA gives you certain legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability of this EULA will apply to the extent permitted by law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT AND PRODUCT SOFTWARE OR INSTALLING OR USING THE PRODUCT HARDWARE YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH SUCH INSTALLATION ACCESS OR USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT AND PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT, PRODUCT SOFTWARE.
AS DESCRIBED BELOW, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT, PRODUCT SOTWARE AND RELATED SERVICES, INCLUDING, BUT NOT LIMITED TO, ASPECTS OF PERSONAL SAFETY AND CRITICAL USE OR ACCESS OF THE PRODUCT, AND ALL PRODUCT SOFTWARE RELATED THERETO.
1. Non-Exclusive License
Subject to the terms of this EULA, Venstar grants to you a limited and nonexclusive license (with no right to sublicense) to use and execute one (1) copy of the Product and Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product.
2. Restrictions on Use
You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit Product Software or make the Product and Product Software available to any third party, (b) copy or use the Product and Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product and Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or, patent marking(s), other proprietary notices, legends, symbols or labels in the Product and Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product and Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Venstar and provide Venstar an opportunity to create such changes as are needed for interoperability purposes).
3. Software Updates
Venstar may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product and Product Software and related services (“Updates”). You acknowledge that you may be required to install Updates to use the Product and the Product and Product Software and you agree to promptly install any Updates Venstar provides.
4. Ownership of the Product and Product Software
The Product Software and all worldwide patents, copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Venstar and its licensors. Venstar and its licensors reserve all rights in and to the Product and Product Software not expressly granted to you in this EULA. Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA.
5. Open Source and Free Software
Certain items of software included with Venstar’s ColorTouch® line of thermostats are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. If required by any license for any particular Open Source Software, Venstar makes such Open Source Software, and Venstar’s modifications to that Open Source Software, available by written request to Venstar at email@example.com.
6. Term and Termination
This EULA and the license granted hereunder are effective on the date you first use or access the Product Software and Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. Venstar may terminate this EULA at any time if you fail to comply with any of its term(s). You may terminate this EULA effective immediately upon written notice to Venstar. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 17 inclusive will remain in effect, after any such termination.
7. Warranty Disclaimer
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENSTAR PROVIDES THE PRODUCT AND PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. VENSTAR DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT AND PRODUCT SOFTWARE. VENSTAR MAKES NO WARRANTY THAT THE PRODUCT AND PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT AND PRODUCT SOFTWARE, AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND VENSTAR DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HVAC SYSTEM, PLUMBING, ELECTRIC OR POWER UTITILIES OR SERVICES, HOME, PRODUCT, ANY AND ALL DEVICES OR APPLIANCES CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT AND PRODUCT SOFTWARE, OR PRODUCT.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) VENSTAR BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCT(S) OR PRODUCT AND PRODUCT SOFTWARE, EVEN IF VENSTAR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. VENSTAR’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCT AND PRODUCT SOFTWARE, WHETHER IN CONTRACT, TORT OR OTHERWISE IS LIMITED TO AND MAY NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO VENSTAR OR VENSTAR’S AUTHORIZED RESELLER FOR THE PARTICULAR PRODUCT.
9. Limitations of Product and Product Software
You acknowledge that the Products and Product and Product Software are not certified for emergency response. YOU UNDERSTAND THAT THE PRODUCT AND PRODUCT SOFTWARE ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. VENSTAR DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. All life threatening and emergency events should be directed to the appropriate response services. Venstar does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Product and Product Software or any feature of them. Actual energy savings and monetary benefits vary with factors beyond Venstar’s control or knowledge. If the Product or Product Software provides you information (“Product Information”) regarding the Products in your home and their connection with other products and services, such Product Information is provided “as is” and “as available”. Venstar cannot and does not guarantee that any Product Information is correct or up to date. In cases where it is critical, accessing Product Information through the Product and Product Software is not a substitute for direct access of the information in your home.
“Confidential Information” shall mean the Product and Product Software and all other information disclosed to you that Venstar characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Venstar. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Venstar in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and cooperate with Venstar in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Venstar prior to such disclosure to allow Venstar an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Venstar in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
11. Governing Law and Venue
Any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in California and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Venstar may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
12. Export Compliance
The Product and Product Software and related technology may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re- export, or import the Product and Product Software and related technology, as may be required. You will indemnify and hold Venstar harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section regarding export compliance.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
Any notice to you may be provided by email to the address (if any) that you registered with Venstar.
If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
All waivers by Venstar (if any) must be in writing. Any waiver or failure by Venstar to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17. General and Miscellaneous Provisions
The Product and Product Software are deemed irrevocably accepted upon your use of the Product and Product Software. Venstar will have no responsibility to provide maintenance or support services with respect to the Product and Product Software.
The parties to his EULA are independent contractors.
You acknowledge that the Product and Product Software contains valuable trade secrets and proprietary information of Venstar, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Venstar for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing.
Questions or Additional Information. If you have questions regarding this EULA, please contact Venstar at firstname.lastname@example.org.