­­NORTEK SECURITY & CONTROL LLC

TERMS OF SERVICE AND END USER LICENSE AGREEMENT

These Terms of Service (the “Terms”) are a legal agreement (the “Agreement”) between you, an individual or legal entity, (referred herein as “You” or “Your”) and Nortek Security & Control LLC (“Nortek”) for Your use of a Nortek Product that includes software (“Included Software”) which is either owned by Nortek or licensed by it from its software vendors or their affiliates

1.      ACCEPTING THESE TERMS AND CONDITIONS.  By using the Nortek Product and the Included Software, you agree to be bound by the Terms of the Agreement. If you do not agree with all of the Terms of the Agreement, do not use the Nortek Product or the Included Software. If you use the Nortek Product or the Included Software, these Terms are fully accepted by You. If You agree to these Terms on behalf of any entity or organization, You hereby represent to Nortek that You are authorized to accept these Terms on its behalf.

 

2.      LICENSE. Subject to all these Terms, Nortek hereby grants You a limited, single, non-transferable, non-exclusive, revocable license to use the Included Software solely in connection with the Nortek Product. This license does not allow You to use the Included Software on a device that You do not own or are not authorized to use or control. The Terms of this license will govern any updates or upgrades that Nortek may provide to replace or supplement the original Included Software, unless such update or upgrade is accompanied by a separate license agreement, in which case the terms of that license agreement will govern.

 

a.      License Limitations. The Included Software is licensed, not sold, and may only be used under the Terms of this Agreement. You may not copy, reverse engineer, decompile, or disassemble the Included Software by any means whatsoever, or alter, modify, enhance, or create a derivative work of the Included Software, except as and only to the extent that 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 App.

 

b.      License Ownership. The Included Software is protected by copyright and other intellectual property laws and treaties. Nortek or its suppliers own the title, copyright, and other intellectual property rights in the Included Software. Except as expressly stated herein, Nortek and its suppliers and licensors reserve all right, title and interest in the Included Software and all associated copyrights, trademarks, and other intellectual property rights therein. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the software. You may not rent, lease, lend, sublicense, or provide hosting services with the Included Software. You may not use the software to provide commercial services.

 

3.      TERMINATION.  The Terms of this Agreement are effective for the useful life of the Nortek Product and Included Software, unless terminated earlier. Upon termination of this Agreement You shall stop all use of the Included Software. Your rights under this Agreement will terminate immediately and automatically if You fail to comply with any of the Terms of this Agreement. Nortek may terminate this Agreement upon Nortek’s recommendation for users to upgrade the App.  The provisions of this Section 3 and Sections 5, 6, 7, 8, and 10 shall survive expiration or termination of this Agreement, for any reason. Termination of this Agreement will not limit any of Nortek’s other rights or remedies at law or in equity.

 

4.      SUPPORT. Nortek is not required to provide support services under this Agreement but may do so at its sole discretion. This Agreement does not give You any rights to any updates or upgrades to the Included Software, or to any extensions or enhancements thereto developed at any time in the future. Furthermore, Nortek may offer support services separately, and may offer such services for a fee or at no cost. Any supplemental software code or related materials that Nortek may provide to You as part of any support services shall be considered part of the Included Software and subject to the Terms of this Agreement.

 

5.      DISCLAIMER OF WARRANTIES.  YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT:

 

a.      USE OF THE INCLUDED SOFTWARE IS AT YOUR OWN RISK. THE INCLUDED SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, AND NORTEK AND ITS AFFILIATES AND SUBSIDIARIES AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATION, LOSS OF PRIVACY, LOSS OR CORRUPTION OF DATA, FAILURE TO TRANSMIT OR RECEIVE DATA, OR SYSTEM INTEGRATION; THERE IS NO WARRANTY OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS AND SATISFACTORY QUALITY; 

b.      NEITHER NORTEK NOR ITS SUPPLIERS WARRANT THAT THE INCLUDED SOFTWARE IS SUITABLE FOR YOUR USE, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE INCLUDED SOFTWARE WILL MEET YOUR EXPECTATIONS, OR THAT DEFECTS IN THE INCLUDED SOFTWARE WILL BE CORRECTED; NORTEK DOES NOT WARRANT THAT THE USE OR OPERATION OF THE INCLUDED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; AND

c.      NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NORTEK OR ANY THIRD-PARRTY SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS DISCLAIMER. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND NO USE OF ANY PORTION OF THE NORTEK PRODUCT AND THE INCLUDED SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE TERMS AND THIS DISCLAIMER.

d.      Some jurisdictions do not permit the exclusion of implied warranties or limitations on applicable statutory rights of the consumer, and, as such, some portion of the above limitation may not apply to You. In such jurisdictions, Nortek’s liability is limited to the greatest extent permitted by law.

e.      Not an Insurer. You acknowledge and agree that Nortek is not an insurer and is not providing You with Insurance of any type. Nortek does not guarantee nor represent that no loss or injury to person or property will occur with the use of the Nortek Product or the Included Software. Nortek is not assuming liability and therefore shall not be liable to You for any loss or damage to person or property resulting from any cause whatsoever, regardless whether such loss or damage was caused by or contributed to by Nortek or its employees’ performance or failure to perform any obligation under this Agreement. You assume all risk of loss to person and property within and upon Your premises. If You want insurance to protect against any risk of loss at Your premises, You will purchase it. In the event of any loss or injury to any person or property, You agree to look exclusively to third parties and Your insurer, if any, to recover damages. You release Nortek from any claims for contribution, indemnity, subrogation, and other rights to recover against Nortek arising as a result of any injury or loss to person or property.

 

6.      LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NORTEK, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, OR FOR ANY OTHER MONETARY LOSS OR OTHER LOSS ARISING OUT OF OR RELATED TO A FAILURE TO MEET ANY DUTY INCLUDING REASONABLE CARE, NEGLIGENCE, OR FROM THE USE OF OR INABILITY TO USE THE NORTEK PRODUCT OR INCLUDED SOFTWARE, REGARDLESS OF LEGAL THEORY AND REGARDLESS OF HOW CAUSED, INCLUDE, BUT NOT LIMITED TO  THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES BY NORTEK, INFORMATION, THE INCLUDED SOFTWARE AND RELATED CONTENT THROUGH THE NORTEK PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE DEVICE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THESE TERMS, AND EVEN IF NORTEK OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL NORTEK ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO YOU FOR DAMAGES, REGARDLESS OF LEGAL THEORY, IN EXCESS OF THE PRICE YOU PAID FOR YOUR NOTERK PRODUCT.  THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE YOU AND NORTEK.

 

7.      CONTROLLING LAW. This Agreement is governed by the laws of the State of California, excluding its conflict of law principles, as applied to agreements entered into and to be performed entirely in the State of California. For any actions related to the subject matter of this Agreement, You expressly agree to submit to the jurisdiction and venue of the California state and federal courts in San Diego County and agree that process may be served in the manner provided in this Agreement for giving notices or as otherwise allowed by California or federal law. The parties agree that this Agreement is not a contract for the sale of goods; therefore, shall not be governed by any codification of Article 2 or 2A of any Uniform Commercial Code, nor any codification of the Uniform Computer Information Technology Act (UCITA), nor any references to the United National Convention on Contracts for the International Sale of Goods. If any provision of this Agreement is held to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction, the other provisions shall continue in full force and effect, and the invalid or otherwise unenforceable provision shall be amended to achieve as closely as possible the effect of the original term.

 

8.      PRIVACY.  Privacy and other laws in your jurisdiction may impose certain responsibilities on You and Your use of the Nortek Product and Included Software.  Nortek will not collect user information generated during the use of the Nortek Product or the Included Software.  You, and not Nortek, are solely responsible for ensuring that Your use of the Nortek Product and Included Software complies with any such laws, including without limitation any laws relating to audio or video recording of third parties without their knowledge or consent.  If Your use of the Nortek Product and Included Software is prohibited by applicable law, then You may not use the applicable features of the Nortek Product and Included Software.  Nortek shall not and will not be responsible for Your use of the Nortek Product and Included Software in a manner that is illegal in your jurisdiction. 

 

9.      ASSIGNMENT. You may not assign this Agreement or otherwise transfer the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Nortek, which may be withheld in Nortek’s sole discretion. Any attempted transfer or assignment is null and void and shall be deemed a material breach of this Agreement.

 

10.   MISCELLANEOUS. Except as expressly stated in a product warranty accompanying Your Nortek Product, this Agreement set forth Nortek’s entire liability and Your exclusive remedy with respect to the Included Software, and supersedes the terms of any other communications or advertising with respect to the Included Software. You acknowledge that these Terms and the product warranty accompanying the Nortek Product, if any, are the complete statement of the agreement between You and Nortek with respect to the Nortek Product and the Included Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect thereto. No amendment to or modification of this Agreement will be binding unless made in writing and signed by Nortek. No failure to exercise, or delay in exercise, 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 these Terms is held to be void, invalid, unenforceable, or illegal such provision shall be amended to achieve as closely as possible the effect of the original term.

 

You agree that a breach this Agreement adversely affecting Nortek’s proprietary rights in the Included Software may cause irreparable injury to Nortek for which monetary damages  may not be an adequate remedy and Nortek may be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law. Nothing stated in this Agreement will be construed as creating the relationships of partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent, or creating a joint venture.

  

 

Nortek Security & Control LLC

5919 Sea Otter Drive Suite 100

Carlsbad, CA  92010

800-421-1587