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.
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