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End User License Agreement

Treau (DBA Gradient) End User License Agreement

This End User License Agreement (“EULA”) governs the use and provision of the software application, currently known as “Treau App”, in binary executable form, and any successor versions (the “Treau App”). The Treau App is intended to be used only in conjunction with Treau’s HVAC unit that has been provided to you by Treau (“Treau Hardware”) as part of your participation in Treau’s pilot program (the “Pilot Program”).

This EULA is a legally binding agreement between the user of the Treau App (“you”) and Treau, Inc. (“Treau”).

BY INSTALLING, DOWNLOADING, ACCESSING OR USING THE TREAU APP, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS EULA, YOU THEN HAVE NO RIGHTS TO THE TREAU APP AND SHOULD THEREFORE NOT INSTALL, DOWNLOAD, ACCESS OR USE THE TREAU APP.

1. Treau App Overview, Accounts and Eligibility

1.1 Overview and Other Agreements. In conjunction with this EULA, you will also be subject to Treau’s Privacy Policy, which can be accessed at https://www.gradientcomfort.com/pages/privacy-policy-sgc and the separate written agreement executed by or on behalf of you and Treau governing your participation in the Pilot Program (“Pilot Terms”).

1.2 Eligibility and Your Account.

(a) Legal Capacity. You may use the Treau App only if you have the legal capacity to form a binding contract with Treau (except as otherwise stated in this Section 1.2) and only if you are in compliance with this EULA and all applicable local, state, national and international laws, rules and regulations.

(b) Accounts. To use the Treau App, you must register for a user account (“Account”) and provide certain information about yourself, as prompted from the applicable registration form. You represent and warrant that (i) all required registration information that you submit is true and accurate; and (ii) your use of the Treau App will not violate any United States or other applicable law or regulation. You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. The individual who creates an Account is the “Owner” of that Account and must be aged eighteen (18) years or older. By registering for an Account, you represent and warrant that you are aged eighteen (18) or older.

(c) Authorized Users. The Owner of an Account may allow “Authorized Users” aged thirteen (13) years (or the equivalent minimum age in the jurisdiction where you reside, the “Minimum Age”) or older to use the Treau App under his/her Account. Such Authorized Users will have the ability to use the Treau App and access any information input by the Owner. If you are an Authorized User of an Account, you represent and warrant that you are over the Minimum Age. If you are over the Minimum Age but under eighteen (18), you represent and warrant that you will only use the Treau App under the supervision of a parent or legal guardian who agrees to be bound by this EULA on your behalf. Any use or access to the Treau App by individuals under the Minimum Age is strictly prohibited and is a violation of this EULA. Authorized Users are responsible for their own actions in connection with the Treau App. In addition, the Owner is fully responsible for all actions taken by Authorized Users relating to the Owner’s Treau App and Account.

2. License.

2.1 License Grant. Subject to your compliance with the terms and conditions of this EULA, the Privacy Policy and the Pilot Terms, Treau hereby grants to you a limited, royalty-free, non-exclusive, non-sublicenseable and non-transferable right and license to use the Treau App solely in the form made available to you by Treau, and solely for your personal, non-commercial purposes in conjunction with your use of the Treau Hardware and as part of your participation in the Pilot Program.

2.2 Reservation of Rights. Treau retains exclusive ownership of all right, title and interest in and to the Treau App, including all content, media, features, functionalities and any other components and/or software modules included or made available as part of it and any upgrades or updates that may be made available from time to time, and associated intellectual property rights. All of Treau’s rights in and to the Treau App not expressly licensed to you under Section 2.1 are expressly reserved for Treau. Nothing contained in this EULA will be construed as conferring by implication, acquiescence, or estoppel any license or other right upon you.

3. Restrictions; Protection and Third Party Devices.

3.1 Prohibited Uses. You will not, will not attempt to and will not permit any third party to: (a) sublicense, lease, loan, sell, resell, market, transfer, rent, disclose, or distribute the Treau App to any third party; (b) make any use of or perform any acts with respect to the Treau App other than as expressly permitted in accordance with the terms of this EULA; (c) use the Treau App in any manner that violates any applicable law; (d) reproduce or copy the Treau App; (e) modify, adapt, alter, translate, port, enhance, create derivative works of, reverse engineer, decompile or disassemble the Treau App or otherwise derive the source code or other proprietary information or trade secrets from the Treau App; (f) remove, alter, or obscure any proprietary notices from the Treau App; (g) use the Treau App to provide services to third parties (such as business process outsourcing, service bureau applications or third party training); (h) export, re-export or otherwise distribute, directly or indirectly, the Treau App to a jurisdiction or country to which the export, re-export or distribution of such Treau App is prohibited by applicable law; (i) bypass, interfere with or breach any security device or protection used for or contained in the Treau App or any measures designed to monitor or prevent use of the Software in contravention of this EULA; (j) use the software for purposes of benchmarking or competitive analysis of the Treau App, or developing, using, or providing a competing software product or service; or (k) use the Treau App in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person or entity.

3.2 Third Party Devices and Software. You acknowledge that the use and operation of the Treau App may require certain hardware or software, such as the Treau Hardware, and that Treau has no obligation or liability with respect to such hardware or software under this EULA.

4. Changes; Updates.

Treau may add or remove functionalities or features, and may suspend or stop providing the Treau App altogether at any time. Treau may (but is not obliged to) from time to time make available for the Treau App, certain updates, upgrades, bug fixes, patches, other error corrections and new features (“Updates”). Updates may modify or delete in their entirety certain features and functionality of the Treau App. Treau has no obligation to provide Updates or to continue to provide or enable any particular features or functionality. Treau may make Updates available to you conditional upon your acceptance of another agreement or additional terms. You will promptly download and install all Updates and acknowledge and agree that the Treau App or portions thereof may not properly operate should you fail to do so. All Updates will be deemed part of the Treau App and be subject to all terms of this EULA and any additional terms provided with the Updates.

5. Monitoring.

You acknowledge and agree that the Treau App may contain technological measures that are designed to monitor or prevent use of the Software in contravention of this EULA and such measures may suspend or disable access to the Treau App in whole or in part in the event of any breach by you of this EULA.

6. No Support.

Treau has no obligation to provide support or maintenance for, Updates or modifications to, or new releases of, the Treau App.

7. Term and Termination.

7.1 Term. The term of this EULA commences when you acknowledge your acceptance of this EULA and will continue in effect until terminated by Treau when: (a) you breach this EULA; (b) the Pilot Program ends; or (c) Treau decides for any reason to terminate the EULA.

7.2 Effect of Termination. Upon termination of this EULA: (a) you will immediately stop all use of the Treau App; (b) all rights and licenses granted to you to the Treau App and Treau’s related obligations will immediately terminate; (c) at Treau’s request, you will destroy or permanently erase all copies of the Treau App in your possession or control; and (d) Sections 7, 8 and 9 will survive.

8. Disclaimer; Limitations of Liability; Indemnity.

YOU ACKNOWLEDGE THAT THE TREAU APP IS ONLY IN ITS PILOT PHASE AND IS STILL BEING TESTED, AND IS BEING PROVIDED TO YOU FOR NO CHARGE. THEREFORE, TREAU IS DISCLAIMING AND EXCLUDING ITS LIABILITY AS FOLLOWS:

8.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TREAU APP IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES, GUARANTEES OR REPRESENTATIONS AND NEITHER TREAU NOR ITS AFFILIATES MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE, STATUTORY OR OTHERWISE, UNDER LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT DEFECTS OR ERRORS WILL BE CORRECTED OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT, TITLE, THAT THE TREAU APP WILL BE ERROR-FREE OR THAT YOUR ACCESS WILL BE UNINTERRUPTED, OR SIMILAR, UNDER THE LAWS OF ANY JURISDICTION. ALL RISK OF QUALITY AND PERFORMANCE OF THE TREAU APP IS WITH YOU. YOUR USE OF THE TREAU APP IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND TREAU DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HVAC SYSTEM, HOME, OTHER PERIPHERALS CONNECTED TO THE TREAU APP, AND ALL OTHER ITEMS IN YOUR HOME, RESULTING FROM YOUR USE OF THE TREAU APP.

8.2 Exclusion of Damages; Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM WILL TREAU BE LIABLE TO YOU FOR ANY AMOUNT WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY AMOUNT FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOODWILL OR PROFITS, LIQUIDATED DAMAGES, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS’ FEES, COURT COSTS, INTEREST OR EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OR NON-PERFORMANCE OF THE TREAU APP, EVEN IF TREAU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN TO THE EXTENT TREAU’S LIABILITY IS NOT ALREADY EXCLUDED ABOVE, IN NO EVENT WILL TREAU’S AGGREGATE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY IN CONNECTION WITH THE TREAU APP, EXCEED $0.

8.3 Indemnity. To the extent expressly authorized by applicable law, you will indemnify, defend and hold Treau and its affiliates harmless against any and all losses, claims, actions, causes of action, liabilities, demands, fines, judgments, damages and expenses suffered or incurred by Treau or its affiliates in connection with your breach of this EULA.

8.4 Allocation of Risk. The provisions of this EULA allocate the risks between the parties and the parties would not have entered into this EULA without the terms set forth in this Section 8.

9. General.

9.1 Assignment. You may not assign this EULA or any of its rights, interests or obligations hereunder without the prior written consent of Treau. Treau may transfer or assign any part of this EULA or its entirety to a third party without providing notice to you and without your consent. Any purported assignment in violation of this Section 9.1 will be null and void. Subject to the foregoing, this EULA will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns and transferees.

9.2 Notices. All notices which you are required to give to Treau pursuant to this EULA must be in writing and will be deemed duly delivered: (i) when sent, if sent by email or facsimile and receipt has been confirmed by telephone or in writing; (ii) when delivered, if delivered in person to Treau; and (iii) one business day after being sent if sent by overnight delivery via an international courier service. All such notices should be addressed to Treau at: Treau, Inc., ATTN: EULA, 375 Alabama St., Ste 220, San Francisco, CA 94110, unless Treau has notified you of a different address. All notices which are required or may be given to you by Treau pursuant to this EULA will be deemed to have been duly delivered when sent by email to the address you registered with Treau in your Account or provided to you via the Treau App.

9.3 Feedback and Data. You may from time to time provide feedback, comments, suggestions, questions, ideas, or other information to Treau concerning the Treau App, Treau Hardware or Treau’s products, services, technology, techniques, processes or materials (“Feedback”). Treau may in connection with any of its products or services freely use, copy, disclose, license, distribute and otherwise exploit such Feedback in any manner and for any purpose, including improving and developing the Treau App and any other Treau products or services, without any obligation, payment, royalty or restriction whether based on intellectual property rights or otherwise.

9.4 Export Controls. The Treau App and the underlying information and technology may not be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Treau App, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

9.5 U.S. Government End Users. The Treau App is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 -1 through 227.7202 -4 (June 1995), all U.S. Government End Users acquire only those rights in the Treau App that are provided by this Agreement.

9.6 Governing Law. The validity, interpretation and enforcement of this EULA will be governed by the substantive laws, but not the choice of law rules, of the state of California, except as to matters governed by U.S. federal law in which case U.S. federal law will be the governing law.

9.7 Injunctive Relief. You acknowledge and agree that irreparable damage would occur to Treau if any provision of this EULA is not performed in accordance with its specific terms or is otherwise breached by you and as such, Treau will be entitled to an injunction or injunctions to prevent breaches of this EULA and to enforce specifically the performance of the terms and provisions of this EULA without proof of actual damages, this being in addition to any other remedy to which Treau is entitled at law or in equity.

9.8 Modifications to this EULA. Treau may modify this EULA or any additional terms that apply to the Treau App, for example, to reflect changes to the Treau App or the availability of the Treau App. It is your responsibility to look for changes to this EULA on a regular basis. However, Treau will endeavor to post a notice of modifications to this EULA on the Treau App. Unless otherwise stated in such notice, changes will be effective immediately. If you do not agree to any such changes, you should immediately discontinue your use of the Treau App.

9.9 Severability; Waiver. Should any part of this EULA be deemed invalid or unenforceable, such determination will not affect the validity or enforceability of any other part of this EULA. If there is any waiver of any breach or failure to enforce any of the provisions of this EULA, it will not be deemed as a future waiver of such provisions or a waiver of any other provision of this EULA.

9.10 No Third-Party Beneficiaries. This EULA is solely for the benefit of the parties and does not confer on third parties, any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this EULA.

9.11 Entire Agreement. This EULA, along with the Privacy Policy and the Pilot Terms, will constitute the entire agreement between the parties with respect to the subject matter hereof and will supersede all prior negotiations, agreements and understandings of the parties of any nature, whether oral or written, with respect to such subject matter.

9.12 Expenses. All fees and expenses incurred in connection with the transactions contemplated hereby will be paid by the party incurring such fees and expenses.

9.13 Independent Contractors. It is expressly understood that the relationship between Treau and you is that of independent contractors and nothing contained herein will be deemed to create a joint venture, partnership or other relationship. Neither Treau nor you will have the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by the parties.

9.14 Interpretation. In this EULA: (a) headings are for convenience only and do not affect the interpretation of this EULA; (b) the singular includes the plural and vice versa; (c) the words 'such as', 'including', 'particularly' and similar expressions are not used as, nor are intended to be, interpreted as words of limitation; (d) a reference to a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate; a thing includes a part of that thing; and a party includes its successors and permitted assigns; and (e) no rule of construction applies to the disadvantage of Treau because Treau was responsible for the preparation of this EULA.