End User License Agreement
IMPORTANT—READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Immediate Semiconductor, Inc. (“Immedia” or “we” or “us”) with respect to the use of the software (“Product Software”) that is embedded on the Blink product (“Product”). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT FOR A FULL REFUND, IF APPLICABLE,BY CONTACTING IMMEDIA AT THE ADDRESS BELOW.
This EULA does not govern your use of the Site, Site Services, or Mobile Software, or your purchase of the Product (excluding the Product Software). Your purchase of the Product (excluding the Product Software) is governed by the Blink limited warranty, the terms of which are provided at http://www.blinkforhome.com/warranty.
This EULA governs your access and use of the Product Software. This EULA gives you specific 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 under this EULA will not apply to the extent prohibited or limited by applicable 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 SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. 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 OF RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. YOU REPRESENT AND WARRANT THAT (i) YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A US GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE US GOVERNMENT AS A “TERRORIST SUPPORTING” COUNTRY; AND (ii) YOU ARE NOT LISTED ON ANY US GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.
BY USING THE PRODUCT SOFTWARE, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, SECTION 8 (LIMITATIONS OF PRODUCT SOFTWARE/NO EMERGENCY RESPONSE CAPABILITIES) DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT SOFTWARE AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
Grant of License.
Subject to the terms of this EULA, Immedia grants to you a limited, revocable, nontransferable, nonexclusive license (without the right to sublicense) to execute the Product Software, in executable object code form only, solely for use with the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes.
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 the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1 (Grant of License), (c) use any portion of the 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 other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Immedia and provide Immedia an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without prior written approval of Blink for each such release.
Automatic Software Updates.
Immedia may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. By using the Product Software, you consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates Immedia provides. Your continued use of the Product is your agreement to this EULA.
Reservation of Rights and Ownership.
Immedia reserves all rights not expressly granted to you in this EULA. The Product Software is protected by copyright and other intellectual property laws and treaties. Immedia or its suppliers own the title, copyright, and other intellectual property rights in the Product Software. The Product Software is licensed, not sold. This EULA does not grant you any rights to trademarks or service marks of Immedia. There are no implied licenses in this EULA.
Consent to Use of Your Feedback.
You agree that Immedia and its affiliates may collect and use technical information gathered as part of the Product support services provided to you, if any, related to the Product Software. Immedia may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you. All suggestions, feedback or other content submitted by you to Immedia with respect to the Product or Product Software (“User Feedback”) shall be Immedia’s property and you convey all rights to Immedia, including copyright and moral rights, immediately upon submitting such User Feedback. You agree to relinquish all rights and claims to User Feedback. Immedia may use, copy, modify, publish, or redistribute User Feedback for any purpose and in any way without any compensation to you. You also agree that Immedia does not waive any rights to use similar or related ideas previously known to Immedia, developed by its employees, or obtained from other sources.
Certain items of software included with the Product Software 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. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Immedia makes such Open Source Software, and Immedia’s modifications to that Open Source Software, available by written request to Immedia at the email or mailing address listed below.
Term and Termination.
This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. Without prejudice to any other rights, Immedia may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Immedia. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software and you must delete all copies of the Product Software, but the terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.
Limitations of Product Software/No Emergency Response Capabilities
You acknowledge that the Products and Product Software are not designed for, sold for, or certified for emergency response. YOU UNDERSTAND THAT THE PRODUCTS AND PRODUCT SOFTWARE ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM — IMMEDIA DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, the Immedia Customer Care and Support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life threatening and emergency events should be directed to the appropriate response services.
The Product Software provides you information (“Product Information”) regarding the Products in your home and their connection with other products and services. All Product Information is provided “AS IS” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Product Software is not a substitute for direct access of the information in the home.
To the maximum extent permitted by applicable law, Immedia and its suppliers provide the Product Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product Software, and 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. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, ACCURACY, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT SOFTWARE.
IMMEDIA DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. IMMEDIA MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE OR ITS USE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU USE ALL PRODUCT INFORMATION THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND IMMEDIA DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HVAC SYSTEM, PLUMBING, HOME, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.
Limitation of Liability
Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
IN NO EVENT SHALL IMMEDIA 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 PRODUCT SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE PRODUCT SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE PRODCUT 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 IMMEDIA OR ANY SUPPLIER, AND EVEN IF IMMEDIA OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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) IMMEDIA’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO IMMEDIA OR IMMEDIA’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. IMMEDIA DISCLAIMS ALL LIABILITY OF ANY KIND OF IMMEDIA’S LICENSORS AND SUPPLIERS.
The limitations, exclusions and disclaimers in this EULA shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
“Confidential Information” shall mean the Product Software and all other information disclosed to you that Immedia 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 Immedia. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Immedia in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Immedia 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, to the extent permitted by law and prior to such disclosure, you will (i) immediately notify Immedia prior to such disclosure to allow Immedia an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Immedia 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. For the avoidance of doubt, nothing in this Section 10 (Confidentiality) shall provide you with additional rights nor limit your obligations with respect to the use of the Product Software, including, but not limited to, your obligations under Section 2 (Restrictions).
You acknowledge that the Product Software and related technology are subject to U.S. export control laws U.S. export jurisdiction and may be subject to export or import regulations in other countries. You agree to strictly comply with all applicable international and national laws and regulations that apply to the Product 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. You acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold Immedia 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.
Governing Law; Venue.
The courts in some countries will not apply U.S. law to some types of disputes. If you reside in one of those countries, then where U.S. law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to this EULA, will be governed by the laws of the Commonwealth of Massachusetts, U.S.A., without regard to conflicts of laws principles. You also agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply. You agree that regardless of any statute or law to the contrary, any cause of action against us arising out of or related to the Site or the Services must commence within one (1) year after the cause of action accrues or such cause of action shall be permanently barred. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Boston, Massachusetts and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Immedia may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
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 that you registered with Immedia.
This EULA represents the entire agreement between you and Immedia with respect to the Product Software and its terms supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product Software or any other subject matter covered by this EULA. 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 Immedia will be effective only if in writing. Any waiver or failure by Immedia 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.
The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. Immedia will have no responsibility to provide maintenance or support services with respect to the Product Software. The parties are independent contractors, are not joint venturers or partners and have no employer-employee relationship.
You acknowledge that the Product Software contains valuable trade secrets and proprietary information of Immedia, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Immedia for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. You will indemnify and hold Immedia 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 EULA. To the maximum extent permitted by applicable law, you hereby release and waive all claims against Immedia and its suppliers from any and all claims, expenses, costs, damages or penalties of any kind arising out of or relating to the Product or Product Software.
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 hand-signed by the parties.
Questions or Additional Information. If you have questions regarding this EULA, please contact Immedia.
Updated: October 25, 2016