TERMS OF USE, END-USER LICENSE AGREEMENT, AND PRIVACY POLICY
PLEASE READ CAREFULLY BEFORE USING OUR BLUELINK SMART CONNECT APPLICATION:
This Terms of Use, End-user License Agreement, and Privacy Policy (this “Agreement”) is between you and Braeburn Systems, LLC (“Licensor”) and its Partners and Suppliers (as defined below) for the use of the BlueLink Smart Connect Communications Network (the "Network"), including the BlueLink Smart Connect™ software and web based interface and any and all mobile application software (collectively, the “BlueLink Smart Connect Services”) and the licensure of the Network, the BlueLink Smart Connect Services, and Our Software (as defined below) provided to you by Licensor, and/or its Partners and/or Suppliers. Our Software may include related media (including print materials and electronic materials), and shall include future versions, releases, patches, fixes and updates (“Our Software”). Some of our products and services are provided by our partners and suppliers (“Partners” and “Suppliers”). The Network, the BlueLink Smart Connect Services, and Our Software are collectively referred to herein as the “BlueLink System.” This Agreement is by and between you and Licensor and does not include Apple, Inc. (hereinafter referred to as “Apple”). Licensor (and not Apple) is solely responsible for the license (and the content thereof) that is the subject of this Agreement. This Agreement shall be construed to be consistent with the Apple App Store Terms of Service (which you acknowledge that you have had an opportunity to review) as of the effective date of this Agreement.
You agree to be bound by this Agreement by installing, copying, or using the BlueLink System in any manner whatsoever. If, after installing the BlueLink System, but prior to using it, you decide that you do not agree to the terms of this Agreement, you may delete the BlueLink System and not use it. In the event that you discontinue using the BlueLink System, you understand that the control used to communicate with the Network and/or BlueLink Smart Connect Services may not be suitable for use with any other system and Braeburn Systems, LLC, and its Partners and Suppliers shall not be responsible in any way for your use of such control with a system other than the BlueLink System.
A. The BlueLink System includes software owned by Licensor and software licensed to Licensor, and is protected by copyright, trademark, and other intellectual property laws. Subject to the terms of this Agreement, Licensor grants you a limited, non-exclusive, non-transferable license to the BlueLink System, on such computers and/or mobile devices that you own or control, and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, for your personal or commercial use, including use by other accounts associated with you via Apple Family Sharing (the “License”). The BlueLink System is licensed as a single product and its component parts may not be used separately. You acknowledge that the BlueLink System will not be used unlawfully and the parts of the BlueLink System have or in the future may be developed by third parties other than Licensor for use with the parties own products and that such software may be subject to restrictions in addition to those listed in this Agreement, and you agree to respect such third parties’ rights to the fullest extent possible.
B. You may not: (i) sublicense the BlueLink System, (ii) make any copies of the BlueLink System, (iii) sell, transfer or distribute in any manner, whether for compensation or otherwise, copies of the BlueLink System (regardless of how the copies were made) (iv) rent or lease the BlueLink System, (v) modify, or translate the BlueLink System (vi), create derivative works based on the BlueLink System, or (vii) reverse engineer, decompile or disassemble the BlueLink System, without the prior written consent of Licensor, in its sole discretion, except as provided herein. Unregistered use of the BlueLink System is not authorized or permitted, and is in violation of U.S. and international copyright laws. Unauthorized reproduction, distribution or use is subject to civil and criminal penalties. Software and technical information delivered under this Agreement is 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 you shall be solely responsible for obtaining any import, export, and/or re-export approvals and licenses required for such software, as well as any technical information, and retaining documentation to support compliance with all applicable laws and regulations. All rights in the BlueLink System that have not been specifically granted to you by this Agreement are exclusively reserved to and by Licensor (including without limitation, the software object code and source code).
C. The License is effective beginning on the date you legally acquire the BlueLink System. If you breach any part of this Agreement, the License will automatically terminate without the requirement (whether written or verbal) of any notice. Immediately upon termination or expiration of the License, you must delete all copies of the BlueLink System, including without limitation, Our Software, and all of its component parts from your systems, and destroy the original and any and all stand-alone copies.
D. You may use the BlueLink System with External Software Systems subject to this Agreement as long as (1) You comply with all of the terms herein, and (2) You comply with the license agreement and any terms of use of any such external software system.
A. You represent that you are of legal age to form a binding contract, are not under a legal incapacity, and are not a person barred from receiving services under any applicable law. You also agree to provide true, accurate, current and complete information about yourself in the registration form and maintain and promptly update such information to keep it true, accurate, current and complete. Licensor has the right to suspend or terminate your account and refuse any and all current or future use of the BlueLink System if you provide (or if Licensor reasonably believes that you have provided) untrue, inaccurate, outdated, or incomplete information in the registration form.
B. In order to access the BlueLink System you must create a unique username and password. It is your responsibility to keep your username and password confidential. You are fully responsible for all activities that occur under your username and password in your account (or any subaccount). Any third party to whom you grant access to your account (or permit to maintain a subaccount) shall be bound by the terms of this Agreement, and you agree to take all steps necessary to ensure that party’s compliance with this Agreement. Furthermore, you agree to indemnify Licensor for any and all costs, damages, losses or expenses incurred by Licensor, its Partners and Suppliers as a consequence of any third-party use, and you acknowledge that Licensor will not be liable for any loss or damage arising from your failure to comply with this Section.
C. You are prohibited from tampering with, disabling. circumventing or attempting to tamper with, disable or circumvent any security software or devices, license management systems, access logs, or other measures used in, or provided in connection with, the BlueLink System, nor shall you permit or assist any other person or entity to do the same.
D. You may add additional parties to your account at your own risk. You acknowledge that such parties will have full access to the BlueLink System, including, but not limited to, the ability to view and change any and all of your settings and programming. Consequently, you agree that Licensor and its Partners and Suppliers shall have no responsibility to you for any actions of such additional parties.
E. YOU UNDERSTAND AND AGREE THAT IF YOU MOVE OUT OF THE PREMISES FOR WHICH YOU ARE USING THE BLUELINK SYSTEM, YOU MUST DELETE YOUR ACCOUNT AND DISCONTINUE ACCESSING THE NETWORK OR BLUELINK SMART CONNECT SERVICES WITH RESPECT TO YOUR PRIOR ACCOUNT.
A. Data and all other information about you that you provide whether through registration or otherwise is subject to the terms of this Agreement. You acknowledge that by using the BlueLink System, you consent to the collection and use (consistent with this Agreement) of this information by Licensor and its Partners and Suppliers (collectively hereinafter sometimes referred to as “we” for purposes of this Section).
B. We are aware of the need to address internet privacy and we believe you should be aware of how we intend to treat any information about you we may receive. We collect a variety of information (both personally identifiable and anonymous) relating to you and your use of the BlueLink System for a number of important purposes, but our main goals are (i) to provide you with services and features that meet your needs and (ii) to improve upon those services and features in the future. We may also use collected information in anonymous form aggregated with other consumer information in order to study how you and others use the BlueLink System in order to determine what is most beneficial for our users, how we can continually create a better overall experience for our users, which users are likely to be interested in receiving other services, and for such other various business purposes as Licensor and its Partners and Suppliers shall determine in their sole discretion. In addition, we may use the information that we collect for any other lawful purpose.
C. Some of the information we collect specifically identifies you or your household. However, your privacy is important to us. Accordingly, while there is no guaranty, we utilize commercially reasonable efforts to anonymize collected information by removing any information that would identify any specific individual or household. Anonymous information helps us understand how the BlueLink System is used in different geographic areas, helps us analyze how customers use the BlueLink System, helps us troubleshoot technical issues with the BlueLink System, and helps us conduct other, related research.
D. Location Data. For geofencing purposes, meaning your thermostat will adjust its temperature based on if you are inside or outside a user selected geofence distance. With your express consent, we use the result of inside or outside the geofence to adjust your thermostat temperature to a user selected value. We never externally collect the real-time location from your mobile device. The mobile device determines inside or outside the user selected fence and provides a signal to the BlueLink Cloud. The BlueLink cloud then signals your thermostat(s) to set an inside or outside the geofence temperature. This information will be used only for purposes of facilitating your adjustment of the thermostat setpoint. Once you have consented to the use of the information on your mobile device, you may adjust or remove this consent by managing your Location Services preferences through the settings of your mobile device.
E. We may share such anonymous information and research derived from such information with third parties including utilities, our Partners and Suppliers, advertisers, consumer and market research companies, merchants and other similar entities. Our affiliates, distributors, Partners and Suppliers may have the same access to our collected information as we do. Each of them has agreed to treat such information with the same degree of privacy outlined herein, unless there is another agreement between you and that entity.
F. Temporary, limited and specific access to our collected information may be granted to other third parties (including but not limited to consultants, accountants, programmers, attorneys and collection agencies) in connection with our business operations. Third parties are asked to agree to protect the confidentiality of our collected information. Third parties are solely responsible if they misuse any collected information.
G. Deleting your account. The BlueLink System mobile applications provides the ability to delete your account, including disassociating any devices in your account from the account and deleting the usage history of the devices in the account. When these irrevocable steps are completed in the mobile application, you will be logged out of your deleted account and the user name and password will be deleted.
Licensor is solely responsible for providing any maintenance and support services with respect to the BlueLink System, as specified in this Agreement, or as required under applicable law. Licensor and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the BlueLink System. Licensor reserves the right at any time and from time to time to modify or discontinue the BlueLink System (or any part thereof) with or without notice. You agree that Licensor shall not be liable to you or to any third party for any such action.
Licensor reserves the right to charge fees upon reasonable notice for access to and use of the BlueLink System, including without limitation, the BlueLink Smart Connect Services and/or the Network and/or other Licensor services or third party services. Fees may include but are not limited to initial activation fees, reactivation fees after a period of inactivity, and/or renewal fees due after the initial activation period has expired. The current fees may be found by contacting BlueLink Smart Connect (1-844-BLUELINK). Neither Licensor, nor its Partners or Suppliers shall be liable to you for damages of any kind in the event that Licensor discontinues providing the Network. Provided, however, if you prepaid any refundable, real dollar payments to Licensor you will receive a refund for the unused portion of such prepayment. Licensor will not refund any amounts prepaid to any party other than Licensor.
A. Nothing to the contrary herein withstanding, this Agreement shall become effective upon the earlier of: (i) the day that your internet-enabled control, or control coupled with a gateway (as the case may be) is connected to the Network or (ii) the date you installed, copied, or otherwise began using the BlueLink System. This Agreement shall be automatically renewed each day thereafter until one party notifies the other that it no longer wishes to provide or use (as the case may be) the Network or BlueLink Smart Connect Services. Nonetheless, the terms of this Agreement shall remain effective for so long as your control (and/or control and gateway combination) utilizes the Network in any way. In addition, this section and the following Sections of this Agreement shall survive the expiration and/or termination of this Agreement.
B. We reserve the right to terminate and/or suspend any user’s access to all or any part of the BlueLink System, in our sole discretion, with or without prior notice. Without limiting our discretion, following are examples of circumstances in which we may terminate or suspend a user’s access to all or part of the BlueLink System: (i) user inactivity (for example, failing to log-in for a period of 24 months) (ii) conduct that Licensor in its sole discretion deems harmful or potentially harmful to other users or to Licensor, its affiliates, Suppliers or Partners, (iii) conduct that violates local, state or federal or law, (iii). If you are allowed to resume access to the BlueLink System following an interruption, you may be subject to a reactivation fee. If access to the BlueLink System is interrupted, even temporarily, information and other previously available content may be lost.
THE BLUELINK SYSTEM, INCLUDING WITHOUT LIMITATION, OUR SOFTWARE, ANY AND ALL RELATED FILES, DATA AND MATERIALS, THE BLUELINK SMART CONNECT SERVICES AND THE NETWORK ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND, WHETHER REGARDING THE OPERATION OF THE BLUELINK SYSTEM OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED IN THE BLUELINK SYSTEM. YOU EXPRESSLY AGREE THAT YOUR USE OF THE BLUELINK SYSTEM IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR AND ITS PARTNERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE BLUELINK SYSTEM.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL NOT BE RESPONSIBLE FOR OR LIABLE FOR: (1) THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OPERABILITY OR AVAILABILITY OF ANY CONTENT OR INFORMATION PROVIDED BY OR ACCESSIBLE THROUGH THE BLUELINK SYSTEM; OR (2) THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL; OR (3) BREACHES OF SECURITY; OR (4) INFORMATION COMMUNICATED THROUGH MESSAGE BOARDS OR OTHER FORUMS; OR (5) ANY OTHER FAILURE TO PERFORM BY LICENSOR OR ITS PARTNERS OR SUPPLIERS. LICENSOR USES REASONABLE COMMERCIAL EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION. LICENSOR ASSUMES NO LIABILITY FOR ANY TYPOGRAPHICAL OR OTHER ERRORS OR OMISSIONS IN THE CONTENT OF THE BLUELINK SYSTEM.
LICENSOR AND ITS PARTNERS AND SUPPLIERS EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR CONTENT THROUGH THE BLUELINK SYSTEM, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, MALWARE OR OTHER TYPES OF MALICIOUS FILES. YOU UNDERSTAND AND AGREE THAT DOWNLOADING OR OTHERWISE OBTAINING MATERIAL THROUGH THE USE OF THE BLUELINK SYSTEM IS DONE AT YOUR OWN RISK AND THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
LICENSOR AND ITS PARTNERS AND SUPPLIERS EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILLITY FOR ANY HARM RESULTING FROM YOUR USE OF ANY EXTERNAL SOFTWARE SYSTEM WITH THE BLUELINK SYSTEM. YOU UNDERSTAND AND AGREE THAT LICENSOR SHALL HAVE NO LIABILITY FOR YOUR USE OF ANY EXTERNAL SOFTWARE SYSTEM WITH THE BLUELINK SYSTEM. YOU UNDERSTAND AND AGREE THAT YOUR USE OF AN EXTERNAL SOFTWARE SYSTEM WITH THE BLUELINK SYSTEM IS DONE AT YOUR OWN RISK AND THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES THAT YOU MAY SUFFER, PERSONAL, PROPERTY, OR OTHER, THAT RESULTS FROM YOUR USE OF THE BLUELINK SYSTEM WITH AN EXTERNAL SOFTWARE SYSTEM.
LICENSOR USES REASONABLE COMMERCIAL EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION. LICENSOR, HOWEVER, ASSUMES NO LIABILITY FOR ANY TYPOGRAPHICAL OR OTHER ERRORS OR OMISSIONS IN THE CONTENT OF THE BLUELINK SYSTEM.
LICENSOR AND ITS PARTNERS AND SUPPLIERS DO NOT WARRANT THE RELIABILITY OR ACCESSIBILITY OF ANY DATA STORAGE FACILITIES PROVIDED BY LICENSOR, ITS PARTNERS AND SUPPLIERS. UNDER NO CIRCUMSTANCES SHALL LICENSOR OR ITS PARTNERS OR SUPPLIERS BE HELD LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR CONSEQUENTIAL, WHICH MIGHT ARISE FROM DISRUPTION OR CANCELLATION OF SERVICES PROVIDED BY INDEPENDENT NETWORK SERVICE PROVIDERS, INCLUDING INTERNET SERVICE PROVIDERS, TELEPHONE COMPANIES, CELLULAR TELEPHONE SERVICE PROVIDERS, OTHER WIRELESS SERVICE PROVIDERS, AND ANY COMMUNICATION SERVICE PROVIDERS WHOSE SERVICES ARE BEYOND THE CONTROL OF LICENSOR.
YOU UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCE SHALL LICENSOR OR ITS PARTNERS OR SUPPLIERS BE HELD LIABLE FOR ANY DAMAGE, CLAIM, DELAY, OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
TO THE EXTENT THE BLUELINK SYSTEM FAILS TO CONFORM TO ANY APPLICABLE WARRANTY IMPOSED BY LAW NOT WITHSTANDING THE FOREGOING WARRANTY DISCLAIMERS, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND ANY MONEY PAID BY YOU FOR THE GRANT OF THE LICENSE TO USE THE BLUELINK SYSTEM, AND APPLE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE BLUELINK SYSTEM AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY IMPOSED BY LAW.
LICENSOR MAKES NO GUARANTEE THAT THE BLUELINK SYSTEM WILL PROVIDE ADEQUATE WARNING TO YOU TO PREVENT PERSONAL INJURY, PROPERTY LOSS OR OTHER DAMAGES IN THE EVENT OF EXTREME OR EXCESSIVE HEAT, COLD OR HUMIDITY IN YOUR PREMISES. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT LICENSOR, ITS PARTNERS AND SUPPLIERS SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY LOSS OR ANY OTHER DAMAGE BASED ON A CLAIM THAT THE BLUELINK SYSTEM OR OUR EQUIPMENT FAILED TO GIVE AN ADEQUATE WARNING. YOU ACKNOWLEDGE AND AGREE THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS CANNOT GUARANTEE THE SECURITY OF ANY WIRELESS TRANSMISSION, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE BLUELINK SYSTEM.
You and Licensor acknowledge that Licensor, and not Apple, is responsible for addressing any claims you or a third party may have relating to the BlueLink system or your possession and/or use of the BlueLink System, including, but not limited to: (i) product liability claims; (ii) any claim that the BlueLink System fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
A. Fee Shifting. For any challenge to this Agreement, the parties agree that the prevailing party shall be entitled to recover all fees and expenses from the losing party, including attorney fees and expert witness fees.
B. Indemnification: You agree to indemnify Braeburn Systems, LLC, as well as its officers, directors, owners, partners, suppliers, employees, and agents from any claim by a third-party related to Your use of the BlueLink System or any part of the BlueLink system that is raised in a Third-Party Legal Proceeding, including any use by You with an External Software System.
C. Indemnification Exclusions: Section 10.B (Indemnification) will not apply to the extent that the underlying allegation for which indemnification is sought arises from:
D. Indemnification Obligations: Section 10.B (Indemnification) is conditioned on the following:
1. Braeburn Systems, LLC will promptly notify You in writing of any allegations that preceded the Third-Party Legal Proceeding, and will provide reasonable cooperation with You to resolve the allegation(s) and the Third-Party Legal Proceeding. If breach of this Section 10.D.1 prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 10.B (Indemnification) will be reduced in proportion to this prejudice.
2. Braeburn Systems, LLC shall have the right to select its own counsel to defend any Third-Party Legal Proceeding, which shall be paid directly by Braeburn Systems, LLC. Braeburn Systems, LLC shall issue invoices reflecting any payments made to legal counsel, expert witnesses, and other expenses, which shall be promptly paid by the indemnifying party not later than thirty (30) days after receipt by the indemnifying party.
3. Braeburn Systems, LLC will tender any settlement proposal to the indemnifying party. However, Braeburn Systems, LLC has the right to reject any settlement proposal that requires a payment of money by Braeburn Systems, LLC or any change to the business practices of Braeburn Systems, LLC.
A. Validity. You hereby acknowledge that: (i) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country, (ii) you are not listed on any United States Government list of prohibited or restricted parties, and (iii) you have duly executed this Agreement.
B. Licensor Duty With Respect to Alleged Infringement. You and Licensor acknowledge that in the event of any third party claim that the BlueLink System or your possession and use of the BlueLink System (or any part thereof) infringes that third party’s intellectual property rights, Licensor and not Apple will be solely responsible for the investigation, defense, settlement and discharge of any such claim.
C. Construction. Gender references used herein shall be modified as required to meet the circumstances. Whenever the context so requires, the plural shall include the singular and vice versa.
D. Application of Illinois Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois without giving effect to any choice-of-law or conflict-of-law provision or rule (whether of the State of Illinois or of any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.
E. Forum for Litigation; Acceptance of Personal Jurisdiction. If any party to this Agreement sues another party in a suit under or relating to this Agreement, the party bringing the suit shall do soin either the Circuit Court for the Sixteenth Judicial Circuit of Illinois (Kane County), or the United States District Court for the Northern District of Illinois, Eastern Division. All parties expressly waive any challenge to personal jurisdiction or venue.
F. Captions. All captions in this Agreement are for convenience only and shall be deemed irrelevant in construing any provision of the Agreement.
G. No Waiver. No delay of or omission by Licensor in the exercise of any right, power or remedy accruing to Licensor as a result of any breach or default by another party under this Agreement:
No waiver by Licensor of any single breach or default under this Agreement shall be construed as a waiver by Licensor of any other breach or default occurring before or after that waiver.
H. Separability of Provisions. Each provision of this Agreement (a “Provision”) shall be deemed separable. If any (i) Provision or (ii) the application of any Provision to any person or circumstance shall be held invalid or unenforceable in any jurisdiction, the Provision shall be ineffective:
I. Assignment. You may not assign this Agreement or any of your rights or duties under this Agreement to any third party except with the prior written consent of Licensor. Licensor may assign this Agreement, in whole or in part, in its sole discretion.
J. Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, assigns, officers, directors, employees, agents, contractors, licensees, affiliates, family members, guests and authorized users.
K. Notices. All notices to Licensor shall be given in writing (i) by mail at the addresses of Licensor’s principal place of business in the State of Illinois, or at such address as Licensor may supply in the future, or (ii) by email at info@bluelinksmartconnect.com. Questions, complaints or claims with respect to the BlueLink System should be submitted to the following E-mail address: info@bluelinksmartconnect.com.
L. Compliance With Third Party Agreements. You must comply with applicable third party terms of agreement when using the BlueLink System. For example, if you have a VoIP application, then you must not be in violation of its wireless data service agreement when using the BlueLink System.
M. Apple as Third Party Beneficiary. You and Licensor acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.
TERMS OF USE, END-USER LICENSE AGREEMENT, AND PRIVACY POLICY
PLEASE READ CAREFULLY BEFORE USING OUR SALUS SYSTEM:
This Terms of Use, End-user License Agreement, and Privacy Policy (this “Agreement”) is between you and Braeburn Systems, LLC (“Licensor”) and its Partners and Suppliers (as defined below) for the use of the SALUS Communications Network (the "Network"), including the Salus Smart Home, Salus Smart Building and Salus Smart Connect software and web-based interface and any and all mobile application software (collectively, the “SALUS System”) and the licensure of the Network, the SALUS System, and Our Software (as defined below) provided to you by Licensor, and/or its Partners and/or Suppliers. Our Software may include related media (including print materials and electronic materials), and shall include future versions, releases, patches, fixes, and updates (“Our Software”). Some of our products and services are provided by our partners and suppliers (“Partners” and “Suppliers”). The Network, the SALUS System, and Our Software are collectively referred to herein as the “SALUS System.” This Agreement is by and between you and Licensor and does not include Apple, Inc. (hereinafter referred to as “Apple”). Licensor (and not Apple) is solely responsible for the license (and the content thereof) that is the subject of this Agreement. This Agreement shall be construed to be consistent with the Apple App Store Terms of Service (which you acknowledge that you have had an opportunity to review) as of the effective date of this Agreement.
You agree to be bound by this Agreement by installing, copying, or using the SALUS System in any manner whatsoever. If, after installing the SALUS System, but prior to using it, you decide that you do not agree to the terms of this Agreement, you may delete the SALUS System and not use it. In the event that you discontinue using the SALUS System, you understand that the control used to communicate with the Network and/or SALUS Services may not be suitable for use with any other system and Braeburn Systems, LLC, and its Partners and Suppliers shall not be responsible in any way for your use of such control with a system other than the SALUS System.
A. The SALUS System includes software owned by Licensor and software licensed to Licensor, and is protected by copyright, trademark, and other intellectual property laws. Subject to the terms of this Agreement, Licensor grants you a limited, non-exclusive, non-transferable license to the SALUS System, on such computers and/or mobile devices that you own or control, and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, for your personal or commercial use, including use by other accounts associated with you via Apple Family Sharing (the “License”). The SALUS System is licensed as a single product and its component parts may not be used separately. You acknowledge that the SALUS System will not be used unlawfully and the parts of the SALUS System have or in the future may be developed by third parties other than Licensor for use with the parties own products and that such software may be subject to restrictions in addition to those listed in this Agreement, and you agree to respect such third parties’ rights to the fullest extent possible.
B. You may not: (i) sublicense the SALUS System, (ii) make any copies of the SALUS System, (iii) sell, transfer or distribute in any manner, whether for compensation or otherwise, copies of the SALUS System (regardless of how the copies were made) (iv) rent or lease the SALUS System, (v) modify, or translate the SALUS System (vi), create derivative works based on the SALUS System, or (vii) reverse engineer, decompile or disassemble the SALUS System, without the prior written consent of Licensor, in its sole discretion, except as provided herein. Unregistered use of the SALUS System is not authorized or permitted, and is in violation of U.S. and international copyright laws. Unauthorized reproduction, distribution or use is subject to civil and criminal penalties. Software and technical information delivered under this Agreement is 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 you shall be solely responsible for obtaining any import, export, and/or re-export approvals and licenses required for such software, as well as any technical information, and retaining documentation to support compliance with all applicable laws and regulations. All rights in the SALUS System that have not been specifically granted to you by this Agreement are exclusively reserved to and by Licensor (including without limitation, the software object code and source code).
C. The License is effective beginning on the date you legally acquire the SALUS System. If you breach any part of this Agreement, the License will automatically terminate without the requirement (whether written or verbal) of any notice. Immediately upon termination or expiration of the License, you must delete all copies of the SALUS System, including without limitation, Our Software, and all of its component parts from your systems, and destroy the original and any and all stand-alone copies.
D. You may use the SALUS System with External Software Systems subject to this Agreement as long as (1) You comply with all of the terms herein, and (2) You comply with the license agreement and any terms of use of any such external software system.
A. You represent that you are of legal age to form a binding contract, are not under a legal incapacity, and are not a person barred from receiving services under any applicable law. You also agree to provide true, accurate, current and complete information about yourself in the registration form and maintain and promptly update such information to keep it true, accurate, current and complete. Licensor has the right to suspend or terminate your account and refuse any and all current or future use of the SALUS System if you provide (or if Licensor reasonably believes that you have provided) untrue, inaccurate, outdated, or incomplete information in the registration form.
B. In order to access the SALUS System you must create a unique username and password. It is your responsibility to keep your username and password confidential. You are fully responsible for all activities that occur under your username and password in your account (or any subaccount). Any third party to whom you grant access to your account (or permit to maintain a subaccount) shall be bound by the terms of this Agreement, and you agree to take all steps necessary to ensure that party’s compliance with this Agreement. Furthermore, you agree to indemnify Licensor for any and all costs, damages, losses or expenses incurred by Licensor, its Partners and Suppliers as a consequence of any third-party use, and you acknowledge that Licensor will not be liable for any loss or damage arising from your failure to comply with this Section.
C. You are prohibited from tampering with, disabling. circumventing or attempting to tamper with, disable or circumvent any security software or devices, license management systems, access logs, or other measures used in, or provided in connection with, the SALUS System, nor shall you permit or assist any other person or entity to do the same.
D. You may add additional parties to your account at your own risk. You acknowledge that such parties will have full access to the SALUS System, including, but not limited to, the ability to view and change any and all of your settings and programming. Consequently, you agree that Licensor and its Partners and Suppliers shall have no responsibility to you for any actions of such additional parties.
E. YOU UNDERSTAND AND AGREE THAT IF YOU MOVE OUT OF THE PREMISES FOR WHICH YOU ARE USING THE SALUS SYSTEM, YOU MUST DELETE YOUR ACCOUNT AND DISCONTINUE ACCESSING THE NETWORK OR SALUS SMART CONNECT SERVICES WITH RESPECT TO YOUR PRIOR ACCOUNT.
A. Data and all other information about you that you provide whether through registration or otherwise is subject to the terms of this Agreement. You acknowledge that by using the SALUS System, you consent to the collection and use (consistent with this Agreement) of this information by Licensor and its Partners and Suppliers (collectively hereinafter sometimes referred to as “we” for purposes of this Section).
B. We are aware of the need to address internet privacy and we believe you should be aware of how we intend to treat any information about you we may receive. We collect a variety of information (both personally identifiable and anonymous) relating to you and your use of the SALUS System for a number of important purposes, but our main goals are (i) to provide you with services and features that meet your needs and (ii) to improve upon those services and features in the future. We may also use collected information in anonymous form aggregated with other consumer information in order to study how you and others use the SALUS System in order to determine what is most beneficial for our users, how we can continually create a better overall experience for our users, which users are likely to be interested in receiving other services, and for such other various business purposes as Licensor and its Partners and Suppliers shall determine in their sole discretion. In addition, we may use the information that we collect for any other lawful purpose.
C. Some of the information we collect specifically identifies you or your household. However, your privacy is important to us. Accordingly, while there is no guaranty, we utilize commercially reasonable efforts to anonymize collected information by removing any information that would identify any specific individual or household. Anonymous information helps us understand how the SALUS System is used in different geographic areas, helps us analyze how customers use the SALUS System, helps us troubleshoot technical issues with the SALUS System, and helps us conduct other, related research.
D. We may share such anonymous information and research derived from such information with third parties including utilities, our Partners and Suppliers, advertisers, consumer and market research companies, merchants and other similar entities. Our affiliates, distributors, Partners and Suppliers may have the same access to our collected information as we do. Each of them has agreed to treat such information with the same degree of privacy outlined herein, unless there is another agreement between you and that entity.
E. Temporary, limited and specific access to our collected information may be granted to other third parties (including but not limited to consultants, accountants, programmers, attorneys and collection agencies) in connection with our business operations. Third parties are asked to agree to protect the confidentiality of our collected information. Third parties are solely responsible if they misuse any collected information.
F. Deleting your account. The SALUS System mobile applications provide the ability to delete your account, including disassociating any devices in your account from the account and deleting the usage history of the devices in the account. When these irrevocable steps are completed in the mobile application, you will be logged out of your deleted account and the username and password will be deleted.
Licensor is solely responsible for providing any maintenance and support services with respect to the SALUS System, as specified in this Agreement, or as required under applicable law. Licensor and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the SALUS System. Licensor reserves the right at any time and from time to time to modify or discontinue the SALUS System (or any part thereof) with or without notice. You agree that Licensor shall not be liable to you or to any third party for any such action.
Licensor reserves the right to charge fees upon reasonable notice for access to and use of the SALUS System, including without limitation, the SALUS Services and/or the Network and/or other Licensor services or third-party services. Fees may include but are not limited to initial activation fees, reactivation fees after a period of inactivity, and/or renewal fees due after the initial activation period has expired. The current fees may be found by contacting our support team at(+1.844.258.5465). Neither Licensor, nor its Partners or Suppliers shall be liable to you for damages of any kind in the event that Licensor discontinues providing the Network. Provided, however, if you prepaid any refundable, real dollar payments to Licensor you will receive a refund for the unused portion of such prepayment. Licensor will not refund any amounts prepaid to any party other than Licensor.
A. Nothing to the contrary herein withstanding, this Agreement shall become effective upon the earlier of: (i) the day that your internet-enabled control, or control coupled with a gateway (as the case may be) is connected to the Network or (ii) the date you installed, copied, or otherwise began using the SALUS System. This Agreement shall be automatically renewed each day thereafter until one party notifies the other that it no longer wishes to provide or use (as the case may be) the Network or SALUS Services. Nonetheless, the terms of this Agreement shall remain effective for so long as your control (and/or control and gateway combination) utilizes the Network in any way. In addition, this section and the following Sections of this Agreement shall survive the expiration and/or termination of this Agreement.
B. We reserve the right to terminate and/or suspend any user’s access to all or any part of the SALUS System, in our sole discretion, with or without prior notice. Without limiting our discretion, following are examples of circumstances in which we may terminate or suspend a user’s access to all or part of the SALUS System: (i) user inactivity (for example, failing to log-in for a period of 24 months) (ii) conduct that Licensor in its sole discretion deems harmful or potentially harmful to other users or to Licensor, its affiliates, Suppliers or Partners, (iii) conduct that violates local, state or federal or law, (iii). If you are allowed to resume access to the SALUS System following an interruption, you may be subject to a reactivation fee. If access to the SALUS System is interrupted, even temporarily, information and other previously available content may be lost.
THE SALUS SYSTEM, INCLUDING WITHOUT LIMITATION, OUR SOFTWARE, ANY AND ALL RELATED FILES, DATA AND MATERIALS, THE SALUS SERVICES AND THE NETWORK ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND, WHETHER REGARDING THE OPERATION OF THE SALUS SYSTEM OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED IN THE SALUS SYSTEM. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SALUS SYSTEM IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR AND ITS PARTNERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SALUS SYSTEM.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL NOT BE RESPONSIBLE FOR OR LIABLE FOR: (1) THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OPERABILITY OR AVAILABILITY OF ANY CONTENT OR INFORMATION PROVIDED BY OR ACCESSIBLE THROUGH THE SALUS SYSTEM; OR (2) THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL; OR (3) BREACHES OF SECURITY; OR (4) INFORMATION COMMUNICATED THROUGH MESSAGE BOARDS OR OTHER FORUMS; OR (5) ANY OTHER FAILURE TO PERFORM BY LICENSOR OR ITS PARTNERS OR SUPPLIERS. LICENSOR USES REASONABLE COMMERCIAL EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION. LICENSOR ASSUMES NO LIABILITY FOR ANY TYPOGRAPHICAL OR OTHER ERRORS OR OMISSIONS IN THE CONTENT OF THE SALUS SYSTEM.
LICENSOR AND ITS PARTNERS AND SUPPLIERS EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR CONTENT THROUGH THE SALUS SYSTEM, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, MALWARE OR OTHER TYPES OF MALICIOUS FILES. YOU UNDERSTAND AND AGREE THAT DOWNLOADING OR OTHERWISE OBTAINING MATERIAL THROUGH THE USE OF THE SALUS SYSTEM IS DONE AT YOUR OWN RISK AND THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
LICENSOR AND ITS PARTNERS AND SUPPLIERS EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILLITY FOR ANY HARM RESULTING FROM YOUR USE OF ANY EXTERNAL SOFTWARE SYSTEM WITH THE SALUS SYSTEM. YOU UNDERSTAND AND AGREE THAT LICENSOR SHALL HAVE NO LIABILITY FOR YOUR USE OF ANY EXTERNAL SOFTWARE SYSTEM WITH THE SALUS SYSTEM. YOU UNDERSTAND AND AGREE THAT YOUR USE OF AN EXTERNAL SOFTWARE SYSTEM WITH THE SALUS SYSTEM IS DONE AT YOUR OWN RISK AND THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES THAT YOU MAY SUFFER, PERSONAL, PROPERTY, OR OTHER, THAT RESULTS FROM YOUR USE OF THE SALUS SYSTEM WITH AN EXTERNAL SOFTWARE SYSTEM.
LICENSOR USES REASONABLE COMMERCIAL EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION. LICENSOR, HOWEVER, ASSUMES NO LIABILITY FOR ANY TYPOGRAPHICAL OR OTHER ERRORS OR OMISSIONS IN THE CONTENT OF THE SALUS SYSTEM.
LICENSOR AND ITS PARTNERS AND SUPPLIERS DO NOT WARRANT THE RELIABILITY OR ACCESSIBILITY OF ANY DATA STORAGE FACILITIES PROVIDED BY LICENSOR, ITS PARTNERS AND SUPPLIERS.
UNDER NO CIRCUMSTANCES SHALL LICENSOR OR ITS PARTNERS OR SUPPLIERS BE HELD LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR CONSEQUENTIAL, WHICH MIGHT ARISE FROM DISRUPTION OR CANCELLATION OF SERVICES PROVIDED BY INDEPENDENT NETWORK SERVICE PROVIDERS, INCLUDING INTERNET SERVICE PROVIDERS, TELEPHONE COMPANIES, CELLULAR TELEPHONE SERVICE PROVIDERS, OTHER WIRELESS SERVICE PROVIDERS, AND ANY COMMUNICATION SERVICE PROVIDERS WHOSE SERVICES ARE BEYOND THE CONTROL OF LICENSOR.
YOU UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCE SHALL LICENSOR OR ITS PARTNERS OR SUPPLIERS BE HELD LIABLE FOR ANY DAMAGE, CLAIM, DELAY, OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
TO THE EXTENT THE SALUS SYSTEM FAILS TO CONFORM TO ANY APPLICABLE WARRANTY IMPOSED BY LAW NOT WITHSTANDING THE FOREGOING WARRANTY DISCLAIMERS, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND ANY MONEY PAID BY YOU FOR THE GRANT OF THE LICENSE TO USE THE SALUS SYSTEM, AND APPLE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SALUS SYSTEM AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY IMPOSED BY LAW.
LICENSOR MAKES NO GUARANTEE THAT THE SALUS SYSTEM WILL PROVIDE ADEQUATE WARNING TO YOU TO PREVENT PERSONAL INJURY, PROPERTY LOSS OR OTHER DAMAGES IN THE EVENT OF EXTREME OR EXCESSIVE HEAT, COLD OR HUMIDITY IN YOUR PREMISES. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT LICENSOR, ITS PARTNERS AND SUPPLIERS SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY LOSS OR ANY OTHER DAMAGE BASED ON A CLAIM THAT THE SALUS SYSTEM OR OUR EQUIPMENT FAILED TO GIVE AN ADEQUATE WARNING. YOU ACKNOWLEDGE AND AGREE THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS CANNOT GUARANTEE THE SECURITY OF ANY WIRELESS TRANSMISSION, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SALUS SYSTEM.
You and Licensor acknowledge that Licensor, and not Apple, is responsible for addressing any claims you or a third party may have relating to the SALUS system or your possession and/or use of the SALUS System, including, but not limited to: (i) product liability claims; (ii) any claim that the SALUS System fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
A. Fee Shifting. For any challenge to this Agreement, the parties agree that the prevailing party shall be entitled to recover all fees and expenses from the losing party, including attorney fees and expert witness fees.
B. Indemnification: You agree to indemnify Braeburn Systems, LLC, as well as its officers, directors, owners, partners, suppliers, employees, and agents from any claim by a third-party related to Your use of the SALUS System or any part of the SALUS system that is raised in a Third-Party Legal Proceeding, including any use by You with an External Software System.
C. Indemnification Exclusions: Section 10.B (Indemnification) will not apply to the extent that the underlying allegation for which indemnification is sought arises from:
1. Braeburn Systems, LLC’s breach of the Agreement; or
2. Your compliance with instructions from Braeburn Systems, LLC.
D. Indemnification Obligations: Section 10.B (Indemnification) is conditioned on the following:
1. Braeburn Systems, LLC will promptly notify You in writing of any allegations that preceded the Third-Party Legal Proceeding, and will provide reasonable cooperation with You to resolve the allegation(s) and the Third-Party Legal Proceeding. If breach of this Section 10.D.1 prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 10.B (Indemnification) will be reduced in proportion to this prejudice.
2. Braeburn Systems, LLC shall have the right to select its own counsel to defend any Third-Party Legal Proceeding, which shall be paid directly by Braeburn Systems, LLC. Braeburn Systems, LLC shall issue invoices reflecting any payments made to legal counsel, expert witnesses, and other expenses, which shall be promptly paid by the indemnifying party not later than thirty (30) days after receipt by the indemnifying party.
3. Braeburn Systems, LLC will tender any settlement proposal to the indemnifying party. However, Braeburn Systems, LLC has the right to reject any settlement proposal that requires a payment of money by Braeburn Systems, LLC or any change to the business practices of Braeburn Systems, LLC.
A. Validity. You hereby acknowledge that: (i) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country, (ii) you are not listed on any United States Government list of prohibited or restricted parties, and (iii) you have duly executed this Agreement.
B. Licensor Duty With Respect to Alleged Infringement. You and Licensor acknowledge that in the event of any third-party claim that the SALUS System or your possession and use of the SALUS System (or any part thereof) infringes that third party’s intellectual property rights, Licensor and not Apple will be solely responsible for the investigation, defense, settlement and discharge of any such claim.
C. Construction. Gender references used herein shall be modified as required to meet the circumstances. Whenever the context so requires, the plural shall include the singular and vice versa.
D. Application of Illinois Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois without giving effect to any choice-of-law or conflict-of-law provision or rule (whether of the State of Illinois or of any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.
E. Forum for Litigation; Acceptance of Personal Jurisdiction. If any party to this Agreement sues another party in a suit under or relating to this Agreement, the party bringing the suit shall do so in either the Circuit Court for the Sixteenth Judicial Circuit of Illinois (Kane County), or the United States District Court for the Northern District of Illinois, Eastern Division. All parties expressly waive any challenge to personal jurisdiction or venue.
F. Captions. All captions in this Agreement are for convenience only and shall be deemed irrelevant in construing any provision of the Agreement.
G. No Waiver. No delay of or omission by Licensor in the exercise of any right, power or remedy accruing to Licensor as a result of any breach or default by another party under this Agreement:
1. shall impair any such right, power or remedy accruing to Licensor;
2. shall be construed as a waiver of or acquiescence by the party in any such breach or default or of any similar breach or default occurring later.
No waiver by Licensor of any single breach or default under this Agreement shall be construed as a waiver by Licensor of any other breach or default occurring before or after that waiver.
H. Separability of Provisions. Each provision of this Agreement (a “Provision”) shall be deemed separable. If any (i) Provision or (ii) the application of any Provision to any person or circumstance shall be held invalid or unenforceable in any jurisdiction, the Provision shall be ineffective:
(i) Only in that jurisdiction;
(ii) Only to the extent that it has been expressly held to be invalid or unenforceable in that jurisdiction; and
(iii) Without invalidating any other provision of the Agreement or the application of the Provision itself to persons or circumstances other than those to which it was held invalid or unenforceable in the jurisdiction in question.
I. Assignment. You may not assign this Agreement or any of your rights or duties under this Agreement to any third party except with the prior written consent of Licensor. Licensor may assign this Agreement, in whole or in part, in its sole discretion.
J. Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, assigns, officers, directors, employees, agents, contractors, licensees, affiliates, family members, guests and authorized users.
K. Notices. All notices, questions, complaints or claims with respect to the SALUS System to Licensor shall be given in writing (i) by mail at the addresses of Licensor’s principal place of business in the State of Illinois, or at such address as Licensor may supply in the future.
L. Compliance With Third Party Agreements. You must comply with applicable third party terms of agreement when using the SALUS System. For example, if you have a VoIP application, then you must not be in violation of its wireless data service agreement when using the SALUS System.
M. Apple as Third Party Beneficiary. You and Licensor acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary thereof.
TERMS OF USE, END-USER LICENSE AGREEMENT, AND PRIVACY POLICY
PLEASE READ CAREFULLY BEFORE USING OUR SOLO APPLICATION:
This Terms of Use, End-user License Agreement, and Privacy Policy (this “Agreement”) is between you and Braeburn Systems, LLC (“Licensor”) and its Partners and Suppliers (as defined below) for the use of the SOLO Communications Network (the "Network"), including the SOLO software and web based interface and any and all mobile application software (collectively, the “SOLO Services”) and the licensure of the Network, the SOLO Services, and Our Software (as defined below) provided to you by Licensor, and/or its Partners and/or Suppliers. Our Software may include related media (including print materials and electronic materials), and shall include future versions, releases, patches, fixes and updates (“Our Software”). Some of our products and services are provided by our partners and suppliers (“Partners” and “Suppliers”). The Network, the SOLO Services, and Our Software are collectively referred to herein as the “SOLO System.” This Agreement is by and between you and Licensor and does not include Apple, Inc. (hereinafter referred to as “Apple”). Licensor (and not Apple) is solely responsible for the license (and the content thereof) that is the subject of this Agreement. This Agreement shall be construed to be consistent with the Apple App Store Terms of Service (which you acknowledge that you have had an opportunity to review) as of the effective date of this Agreement.
You agree to be bound by this Agreement by installing, copying, or using the SOLO System in any manner whatsoever. If, after installing the SOLO System, but prior to using it, you decide that you do not agree to the terms of this Agreement, you may delete the SOLO System and not use it. In the event that you discontinue using the SOLO System, you understand that the control used to communicate with the Network and/or SOLO Services may not be suitable for use with any other system and Braeburn Systems, LLC, and its Partners and Suppliers shall not be responsible in any way for your use of such control with a system other than the SOLO System.
A. The SOLO System includes software owned by Licensor and software licensed to Licensor, and is protected by copyright, trademark, and other intellectual property laws. Subject to the terms of this Agreement, Licensor grants you a limited, non-exclusive, non-transferable license to the SOLO System, on such computers and/or mobile devices that you own or control, and as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, for your personal or commercial use, including use by other accounts associated with you via Apple Family Sharing (the “License”). The SOLO System is licensed as a single product and its component parts may not be used separately. You acknowledge that the SOLO System will not be used unlawfully and the parts of the SOLOSystem have or in the future may be developed by third parties other than Licensor for use with the parties own products and that such software may be subject to restrictions in addition to those listed in this Agreement, and you agree to respect such third parties’ rights to the fullest extent possible.
B. You may not: (i) sublicense the SOLO System, (ii) make any copies of the SOLO System, (iii) sell, transfer or distribute in any manner, whether for compensation or otherwise, copies of the SOLO System (regardless of how the copies were made) (iv) rent or lease the SOLO System, (v) modify, or translate the SOLOSystem (vi), create derivative works based on the SOLO System, or (vii) reverse engineer, decompile or disassemble the SOLO System, without the prior written consent of Licensor, in its sole discretion, except as provided herein. Unregistered use of the SOLO System is not authorized or permitted, and is in violation of U.S. and international copyright laws. Unauthorized reproduction, distribution or use is subject to civil and criminal penalties. Software and technical information delivered under this Agreement is 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 you shall be solely responsible for obtaining any import, export, and/or re-export approvals and licenses required for such software, as well as any technical information, and retaining documentation to support compliance with all applicable laws and regulations. All rights in the SOLO System that have not been specifically granted to you by this Agreement are exclusively reserved to and by Licensor (including without limitation, the software object code and source code).
C. The License is effective beginning on the date you legally acquire the SOLO System. If you breach any part of this Agreement, the License will automatically terminate without the requirement (whether written or verbal) of any notice. Immediately upon termination or expiration of the License, you must delete all copies of the SOLO System, including without limitation, Our Software, and all of its component parts from your systems, and destroy the original and any and all stand-alone copies.
D. You may use the SOLO System with External Software Systems subject to this Agreement as long as (1) You comply with all of the terms herein, and (2) You comply with the license agreement and any terms of use of any such external software system.
A. You represent that you are of legal age to form a binding contract, are not under a legal incapacity, and are not a person barred from receiving services under any applicable law. You also agree to provide true, accurate, current and complete information about yourself in the registration form and maintain and promptly update such information to keep it true, accurate, current and complete. Licensor has the right to suspend or terminate your account and refuse any and all current or future use of the SOLO System if you provide (or if Licensor reasonably believes that you have provided) untrue, inaccurate, outdated, or incomplete information in the registration form.
B. In order to access the SOLO System you must create a unique username and password. It is your responsibility to keep your username and password confidential. You are fully responsible for all activities that occur under your username and password in your account (or any subaccount). Any third party to whom you grant access to your account (or permit to maintain a subaccount) shall be bound by the terms of this Agreement, and you agree to take all steps necessary to ensure that party’s compliance with this Agreement. Furthermore, you agree to indemnify Licensor for any and all costs, damages, losses or expenses incurred by Licensor, its Partners and Suppliers as a consequence of any third-party use, and you acknowledge that Licensor will not be liable for any loss or damage arising from your failure to comply with this Section.
C. You are prohibited from tampering with, disabling. circumventing or attempting to tamper with, disable or circumvent any security software or devices, license management systems, access logs, or other measures used in, or provided in connection with, the SOLO System, nor shall you permit or assist any other person or entity to do the same.
D. You may add additional parties to your account at your own risk. You acknowledge that such parties will have full access to the SOLO System, including, but not limited to, the ability to view and change any and all of your settings and programming. Consequently, you agree that Licensor and its Partners and Suppliers shall have no responsibility to you for any actions of such additional parties.
E. YOU UNDERSTAND AND AGREE THAT IF YOU MOVE OUT OF THE PREMISES FOR WHICH YOU ARE USING THE SOLO SYSTEM, YOU MUST DELETE YOUR ACCOUNT AND DISCONTINUE ACCESSING THE NETWORK OR SOLO SMART CONNECT SERVICES WITH RESPECT TO YOUR PRIOR ACCOUNT.
A. Data and all other information about you that you provide whether through registration or otherwise is subject to the terms of this Agreement. You acknowledge that by using the SOLO System, you consent to the collection and use (consistent with this Agreement) of this information by Licensor and its Partners and Suppliers (collectively hereinafter sometimes referred to as “we” for purposes of this Section).
B. We are aware of the need to address internet privacy and we believe you should be aware of how we intend to treat any information about you we may receive. We collect a variety of information (both personally identifiable and anonymous) relating to you and your use of the SOLO System for a number of important purposes, but our main goals are (i) to provide you with services and features that meet your needs and (ii) to improve upon those services and features in the future. We may also use collected information in anonymous form aggregated with other consumer information in order to study how you and others use the SOLO System in order to determine what is most beneficial for our users, how we can continually create a better overall experience for our users, which users are likely to be interested in receiving other services, and for such other various business purposes as Licensor and its Partners and Suppliers shall determine in their sole discretion. In addition, we may use the information that we collect for any other lawful purpose.
C. Some of the information we collect specifically identifies you or your household. However, your privacy is important to us. Accordingly, while there is no guaranty, we utilize commercially reasonable efforts to anonymize collected information by removing any information that would identify any specific individual or household. Anonymous information helps us understand how the SOLO System is used in different geographic areas, helps us analyze how customers use the SOLO System, helps us troubleshoot technical issues with the SOLO System, and helps us conduct other, related research.
D. We may share such anonymous information and research derived from such information with third parties including utilities, our Partners and Suppliers, advertisers, consumer and market research companies, merchants and other similar entities. Our affiliates, distributors, Partners and Suppliers may have the same access to our collected information as we do. Each of them has agreed to treat such information with the same degree of privacy outlined herein, unless there is another agreement between you and that entity.
E. Temporary, limited and specific access to our collected information may be granted to other third parties (including but not limited to consultants, accountants, programmers, attorneys and collection agencies) in connection with our business operations. Third parties are asked to agree to protect the confidentiality of our collected information. Third parties are solely responsible if they misuse any collected information.
F. Deleting your account. The SOLO System mobile applications provides the ability to delete your account, including disassociating any devices in your account from the account and deleting the usage history of the devices in the account. When these irrevocable steps are completed in the mobile application, you will be logged out of your deleted account and the username and password will be deleted.
Licensor is solely responsible for providing any maintenance and support services with respect to the SOLO System, as specified in this Agreement, or as required under applicable law. Licensor and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the SOLO System. Licensor reserves the right at any time and from time to time to modify or discontinue the SOLO System (or any part thereof) with or without notice. You agree that Licensor shall not be liable to you or to any third party for any such action.
Licensor reserves the right to charge fees upon reasonable notice for access to and use of the SOLO System, including without limitation, the SOLO Services and/or the Network and/or other Licensor services or third-party services. Fees may include but are not limited to initial activation fees, reactivation fees after a period of inactivity, and/or renewal fees due after the initial activation period has expired. The current fees may be found by contacting our support team at(+1.844.258.5465). Neither Licensor, nor its Partners or Suppliers shall be liable to you for damages of any kind in the event that Licensor discontinues providing the Network. Provided, however, if you prepaid any refundable, real dollar payments to Licensor you will receive a refund for the unused portion of such prepayment. Licensor will not refund any amounts prepaid to any party other than Licensor.
A. Nothing to the contrary herein withstanding, this Agreement shall become effective upon the earlier of: (i) the day that your internet-enabled control, or control coupled with a gateway (as the case may be) is connected to the Network or (ii) the date you installed, copied, or otherwise began using the SOLO System. This Agreement shall be automatically renewed each day thereafter until one party notifies the other that it no longer wishes to provide or use (as the case may be) the Network or SOLO Services. Nonetheless, the terms of this Agreement shall remain effective for so long as your control (and/or control and gateway combination) utilizes the Network in any way. In addition, this section and the following Sections of this Agreement shall survive the expiration and/or termination of this Agreement.
B. We reserve the right to terminate and/or suspend any user’s access to all or any part of the SOLO System, in our sole discretion, with or without prior notice. Without limiting our discretion, following are examples of circumstances in which we may terminate or suspend a user’s access to all or part of the SOLO System: (i) user inactivity (for example, failing to log-in for a period of 24 months) (ii) conduct that Licensor in its sole discretion deems harmful or potentially harmful to other users or to Licensor, its affiliates, Suppliers or Partners, (iii) conduct that violates local, state or federal or law, (iii). If you are allowed to resume access to the SOLO System following an interruption, you may be subject to a reactivation fee. If access to the SOLO System is interrupted, even temporarily, information and other previously available content may be lost.
THE SOLO SYSTEM, INCLUDING WITHOUT LIMITATION, OUR SOFTWARE, ANY AND ALL RELATED FILES, DATA AND MATERIALS, THE SOLO SERVICES AND THE NETWORK ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND, WHETHER REGARDING THE OPERATION OF THE SOLO SYSTEM OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED IN THE SOLO SYSTEM. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SOLO SYSTEM IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR AND ITS PARTNERS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOLO SYSTEM.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL NOT BE RESPONSIBLE FOR OR LIABLE FOR: (1) THE ACCURACY, COMPLETENESS, LEGALITY, RELIABILITY, OPERABILITY OR AVAILABILITY OF ANY CONTENT OR INFORMATION PROVIDED BY OR ACCESSIBLE THROUGH THE SOLO SYSTEM; OR (2) THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL; OR (3) BREACHES OF SECURITY; OR (4) INFORMATION COMMUNICATED THROUGH MESSAGE BOARDS OR OTHER FORUMS; OR (5) ANY OTHER FAILURE TO PERFORM BY LICENSOR OR ITS PARTNERS OR SUPPLIERS. LICENSOR USES REASONABLE COMMERCIAL EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION. LICENSOR ASSUMES NO LIABILITY FOR ANY TYPOGRAPHICAL OR OTHER ERRORS OR OMISSIONS IN THE CONTENT OF THE SOLO SYSTEM.
LICENSOR AND ITS PARTNERS AND SUPPLIERS EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR CONTENT THROUGH THE SOLO SYSTEM, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES, MALWARE OR OTHER TYPES OF MALICIOUS FILES. YOU UNDERSTAND AND AGREE THAT DOWNLOADING OR OTHERWISE OBTAINING MATERIAL THROUGH THE USE OF THE SOLO SYSTEM IS DONE AT YOUR OWN RISK AND THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
LICENSOR AND ITS PARTNERS AND SUPPLIERS EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILLITY FOR ANY HARM RESULTING FROM YOUR USE OF ANY EXTERNAL SOFTWARE SYSTEM WITH THE SOLO SYSTEM. YOU UNDERSTAND AND AGREE THAT LICENSOR SHALL HAVE NO LIABILITY FOR YOUR USE OF ANY EXTERNAL SOFTWARE SYSTEM WITH THE SOLO SYSTEM. YOU UNDERSTAND AND AGREE THAT YOUR USE OF AN EXTERNAL SOFTWARE SYSTEM WITH THE SOLO SYSTEM IS DONE AT YOUR OWN RISK AND THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES THAT YOU MAY SUFFER, PERSONAL, PROPERTY, OR OTHER, THAT RESULTS FROM YOUR USE OF THE SOLO SYSTEM WITH AN EXTERNAL SOFTWARE SYSTEM.
LICENSOR USES REASONABLE COMMERCIAL EFFORTS TO INCLUDE ACCURATE AND UP-TO-DATE INFORMATION. LICENSOR, HOWEVER, ASSUMES NO LIABILITY FOR ANY TYPOGRAPHICAL OR OTHER ERRORS OR OMISSIONS IN THE CONTENT OF THE SOLO SYSTEM.
LICENSOR AND ITS PARTNERS AND SUPPLIERS DO NOT WARRANT THE RELIABILITY OR ACCESSIBILITY OF ANY DATA STORAGE FACILITIES PROVIDED BY LICENSOR, ITS PARTNERS AND SUPPLIERS.
UNDER NO CIRCUMSTANCES SHALL LICENSOR OR ITS PARTNERS OR SUPPLIERS BE HELD LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR CONSEQUENTIAL, WHICH MIGHT ARISE FROM DISRUPTION OR CANCELLATION OF SERVICES PROVIDED BY INDEPENDENT NETWORK SERVICE PROVIDERS, INCLUDING INTERNET SERVICE PROVIDERS, TELEPHONE COMPANIES, CELLULAR TELEPHONE SERVICE PROVIDERS, OTHER WIRELESS SERVICE PROVIDERS, AND ANY COMMUNICATION SERVICE PROVIDERS WHOSE SERVICES ARE BEYOND THE CONTROL OF LICENSOR.
YOU UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCE SHALL LICENSOR OR ITS PARTNERS OR SUPPLIERS BE HELD LIABLE FOR ANY DAMAGE, CLAIM, DELAY, OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.
TO THE EXTENT THE SOLO SYSTEM FAILS TO CONFORM TO ANY APPLICABLE WARRANTY IMPOSED BY LAW NOT WITHSTANDING THE FOREGOING WARRANTY DISCLAIMERS, YOU MAY NOTIFY APPLE, AND APPLE WILL REFUND ANY MONEY PAID BY YOU FOR THE GRANT OF THE LICENSE TO USE THE SOLO SYSTEM, AND APPLE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE SOLO SYSTEM AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY IMPOSED BY LAW.
LICENSOR MAKES NO GUARANTEE THAT THE SOLO SYSTEM WILL PROVIDE ADEQUATE WARNING TO YOU TO PREVENT PERSONAL INJURY, PROPERTY LOSS OR OTHER DAMAGES IN THE EVENT OF EXTREME OR EXCESSIVE HEAT, COLD OR HUMIDITY IN YOUR PREMISES. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT LICENSOR, ITS PARTNERS AND SUPPLIERS SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY LOSS OR ANY OTHER DAMAGE BASED ON A CLAIM THAT THE SOLO SYSTEM OR OUR EQUIPMENT FAILED TO GIVE AN ADEQUATE WARNING. YOU ACKNOWLEDGE AND AGREE THAT LICENSOR AND ITS PARTNERS AND SUPPLIERS CANNOT GUARANTEE THE SECURITY OF ANY WIRELESS TRANSMISSION, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SOLO SYSTEM.
You and Licensor acknowledge that Licensor, and not Apple, is responsible for addressing any claims you or a third party may have relating to the SOLO system or your possession and/or use of the SOLO System, including, but not limited to: (i) product liability claims; (ii) any claim that the SOLO System fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
A. Fee Shifting. For any challenge to this Agreement, the parties agree that the prevailing party shall be entitled to recover all fees and expenses from the losing party, including attorney fees and expert witness fees.
B. Indemnification: You agree to indemnify Braeburn Systems, LLC, as well as its officers, directors, owners, partners, suppliers, employees, and agents from any claim by a third-party related to Your use of the SOLO System or any part of the SOLO system that is raised in a Third-Party Legal Proceeding, including any use by You with an External Software System.
C. Indemnification Exclusions: Section 10.B (Indemnification) will not apply to the extent that the underlying allegation for which indemnification is sought arises from:
1. Braeburn Systems, LLC’s breach of the Agreement; or
2. Your compliance with instructions from Braeburn Systems, LLC.
D. Indemnification Obligations: Section 10.B (Indemnification) is conditioned on the following:
1. Braeburn Systems, LLC will promptly notify You in writing of any allegations that preceded the Third-Party Legal Proceeding, and will provide reasonable cooperation with You to resolve the allegation(s) and the Third-Party Legal Proceeding. If breach of this Section 10.D.1 prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 10.B (Indemnification) will be reduced in proportion to this prejudice.
2. Braeburn Systems, LLC shall have the right to select its own counsel to defend any Third-Party Legal Proceeding, which shall be paid directly by Braeburn Systems, LLC. Braeburn Systems, LLC shall issue invoices reflecting any payments made to legal counsel, expert witnesses, and other expenses, which shall be promptly paid by the indemnifying party not later than thirty (30) days after receipt by the indemnifying party.
3. Braeburn Systems, LLC will tender any settlement proposal to the indemnifying party. However, Braeburn Systems, LLC has the right to reject any settlement proposal that requires a payment of money by Braeburn Systems, LLC or any change to the business practices of Braeburn Systems, LLC.
A. Validity. You hereby acknowledge that: (i) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country, (ii) you are not listed on any United States Government list of prohibited or restricted parties, and (iii) you have duly executed this Agreement.
B. Licensor Duty With Respect to Alleged Infringement. You and Licensor acknowledge that in the event of any third party claim that the SOLO System or your possession and use of the SOLO System (or any part thereof) infringes that third party’s intellectual property rights, Licensor and not Apple will be solely responsible for the investigation, defense, settlement and discharge of any such claim.
C. Construction. Gender references used herein shall be modified as required to meet the circumstances. Whenever the context so requires, the plural shall include the singular and vice versa.
D. Application of Illinois Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois without giving effect to any choice-of-law or conflict-of-law provision or rule (whether of the State of Illinois or of any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.
E. Forum for Litigation; Acceptance of Personal Jurisdiction. If any party to this Agreement sues another party in a suit under or relating to this Agreement, the party bringing the suit shall do so in either the Circuit Court for the Sixteenth Judicial Circuit of Illinois (Kane County), or the United States District Court for the Northern District of Illinois, Eastern Division. All parties expressly waive any challenge to personal jurisdiction or venue.
F. Captions. All captions in this Agreement are for convenience only and shall be deemed irrelevant in construing any provision of the Agreement.
G. No Waiver. No delay of or omission by Licensor in the exercise of any right, power or remedy accruing to Licensor as a result of any breach or default by another party under this Agreement:
No waiver by Licensor of any single breach or default under this Agreement shall be construed as a waiver by Licensor of any other breach or default occurring before or after that waiver.
H. Separability of Provisions. Each provision of this Agreement (a “Provision”) shall be deemed separable. If any (i) Provision or (ii) the application of any Provision to any person or circumstance shall be held invalid or unenforceable in any jurisdiction, the Provision shall be ineffective:
(i) Only in that jurisdiction;
(ii) Only to the extent that it has been expressly held to be invalid or unenforceable in that jurisdiction; and
(iii) Without invalidating any other provision of the Agreement or the application of the Provision itself to persons or circumstances other than those to which it was held invalid or unenforceable in the jurisdiction in question.
I. Assignment. You may not assign this Agreement or any of your rights or duties under this Agreement to any third party except with the prior written consent of Licensor. Licensor may assign this Agreement, in whole or in part, in its sole discretion.
J. Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors, assigns, officers, directors, employees, agents, contractors, licensees, affiliates, family members, guests and authorized users.
K. Notices. All notices, questions, complaints or claims with respect to the SOLO System to Licensor shall be given in writing (i) by mail at the addresses of Licensor’s principal place of business in the State of Illinois, or at such address as Licensor may supply in the future.
L. Compliance With Third Party Agreements. You must comply with applicable third party terms of agreement when using the SOLO System. For example, if you have a VoIP application, then you must not be in violation of its wireless data service agreement when using the SOLO System.
M. Apple as Third Party Beneficiary. You and Licensor acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary thereof.
