End User License Agreement
END USER LICENSE AGREEMENT
This End User License Agreement (“EULA”) governs the use and provision of the software application, currently known as “Gradient App”, in binary executable form, and any successor versions (the “Gradient App”). The Gradient App is intended to be used only in conjunction with Gradient’s HVAC unit that has been provided to you by Gradient (“Gradient Hardware”) as part of your participation in Gradient’s pilot program (the “Pilot Program”).
This EULA is a legally binding agreement between the user of the Gradient App (“you”) and Treau, Inc. (“Gradient”).
BY INSTALLING, DOWNLOADING, ACCESSING OR USING THE GRADIENT 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 GRADIENT APP AND SHOULD THEREFORE NOT INSTALL, DOWNLOAD, ACCESS OR USE THE GRADIENT APP.
- Gradient App Overview, Accounts and Eligibility
- Eligibility and Your Account.
- Legal Capacity. You may use the Gradient App only if you have the legal capacity to form a binding contract with Gradient (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.
- Accounts. To use the Gradient 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 Gradient 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.
- 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 Gradient App under his/her Account. Such Authorized Users will have the ability to use the Gradient 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 Gradient 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 Gradient 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 Gradient App. In addition, the Owner is fully responsible for all actions taken by Authorized Users relating to the Owner’s Gradient App and Account.
- Reservation of Rights. Gradient retains exclusive ownership of all right, title and interest in and to the Gradient 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 Gradient’s rights in and to the Gradient App not expressly licensed to you under Section 2.1 are expressly reserved for Gradient. Nothing contained in this EULA will be construed as conferring by implication, acquiescence, or estoppel any license or other right upon you.
- Restrictions; Protection and Third Party Devices.
- 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 Gradient App to any third party; (b) make any use of or perform any acts with respect to the Gradient App other than as expressly permitted in accordance with the terms of this EULA; (c) use the Gradient App in any manner that violates any applicable law; (d) reproduce or copy the Gradient App; (e) modify, adapt, alter, translate, port, enhance, create derivative works of, reverse engineer, decompile or disassemble the Gradient App or otherwise derive the source code or other proprietary information or trade secrets from the Gradient App; (f) remove, alter, or obscure any proprietary notices from the Gradient App; (g) use the Gradient 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 Gradient App to a jurisdiction or country to which the export, re-export or distribution of such Gradient App is prohibited by applicable law; (i) bypass, interfere with or breach any security device or protection used for or contained in the Gradient 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 Gradient App, or developing, using, or providing a competing software product or service; or (k) use the Gradient 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.
- Third Party Devices and Software. You acknowledge that the use and operation of the Gradient App may require certain hardware or software, such as the Gradient Hardware, and that Gradient has no obligation or liability with respect to such hardware or software under this EULA.
- Changes; Updates. Gradient may add or remove functionalities or features, and may suspend or stop providing the Gradient App altogether at any time. Gradient may (but is not obliged to) from time to time make available for the Gradient 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 Gradient App. Gradient has no obligation to provide Updates or to continue to provide or enable any particular features or functionality. Gradient 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 Gradient App or portions thereof may not properly operate should you fail to do so. All Updates will be deemed part of the Gradient App and be subject to all terms of this EULA and any additional terms provided with the Updates.
- Monitoring. You acknowledge and agree that the Gradient 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 Gradient App in whole or in part in the event of any breach by you of this EULA.
- No Support. Gradient has no obligation to provide support or maintenance for, Updates or modifications to, or new releases of, the Gradient App.
- Term and Termination.
- Term. The term of this EULA commences when you acknowledge your acceptance of this EULA and will continue in effect until terminated by Gradient when: (a) you breach this EULA; (b) the Pilot Program ends; or (c) Gradient decides for any reason to terminate the EULA.
- Effect of Termination. Upon termination of this EULA: (a) you will immediately stop all use of the Gradient App; (b) all rights and licenses granted to you to the Gradient App and Gradient’s related obligations will immediately terminate; (c) at Gradient’s request, you will destroy or permanently erase all copies of the Gradient App in your possession or control; and (d) Sections 7, 8 and 9 will survive.
- Disclaimer; Limitations of Liability; Indemnity.
YOU ACKNOWLEDGE THAT THE GRADIENT APP IS ONLY IN ITS PILOT PHASE AND IS STILL BEING TESTED, AND IS BEING PROVIDED TO YOU FOR NO CHARGE. THEREFORE, GRADIENT IS DISCLAIMING AND EXCLUDING ITS LIABILITY AS FOLLOWS:
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GRADIENT APP IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES, GUARANTEES OR REPRESENTATIONS AND NEITHER GRADIENT 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 GRADIENT 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 GRADIENT APP IS WITH YOU. YOUR USE OF THE GRADIENT APP IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND GRADIENT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HVAC SYSTEM, HOME, OTHER PERIPHERALS CONNECTED TO THE GRADIENT APP, AND ALL OTHER ITEMS IN YOUR HOME, RESULTING FROM YOUR USE OF THE GRADIENT APP.
- 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 GRADIENT 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 GRADIENT APP, EVEN IF GRADIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN TO THE EXTENT GRADIENT’S LIABILITY IS NOT ALREADY EXCLUDED ABOVE, IN NO EVENT WILL GRADIENT’S AGGREGATE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY IN CONNECTION WITH THE GRADIENT APP, EXCEED $0.
- Indemnity. To the extent expressly authorized by applicable law, you will indemnify, defend and hold Gradient 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 Gradient or its affiliates in connection with your breach of this EULA.
- 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.
- Assignment. You may not assign this EULA or any of its rights, interests or obligations hereunder without the prior written consent of Gradient. Gradient 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.
- Notices. All notices which you are required to give to Gradient 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 Gradient; 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 Gradient at: Treau, Inc., ATTN: EULA, 375 Alabama St., Ste 220, San Francisco, CA 94110, unless Gradient has notified you of a different address. All notices which are required or may be given to you by Gradient pursuant to this EULA will be deemed to have been duly delivered when sent by email to the address you registered with Gradient in your Account or provided to you via the Gradient App.
- Feedback and Data. You may from time to time provide feedback, comments, suggestions, questions, ideas, or other information to Gradient concerning the Gradient App, Gradient Hardware or Gradient’s products, services, technology, techniques, processes or materials (“Feedback”). Gradient 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 Gradient App and any other Gradient products or services, without any obligation, payment, royalty or restriction whether based on intellectual property rights or otherwise.
- Export Controls. The Gradient 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 Gradient 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.
- U.S. Government End Users. The Gradient 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 Gradient App that are provided by this Agreement.
- 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.
- Injunctive Relief. You acknowledge and agree that irreparable damage would occur to Gradient if any provision of this EULA is not performed in accordance with its specific terms or is otherwise breached by you and as such, Gradient 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 Gradient is entitled at law or in equity.
- Modifications to this EULA. Gradient may modify this EULA or any additional terms that apply to the Gradient App, for example, to reflect changes to the Gradient App or the availability of the Gradient App. It is your responsibility to look for changes to this EULA on a regular basis. However, Gradient will endeavor to post a notice of modifications to this EULA on the Gradient 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 Gradient App.
- 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.
- 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.
- Expenses. All fees and expenses incurred in connection with the transactions contemplated hereby will be paid by the party incurring such fees and expenses.
- Independent Contractors. It is expressly understood that the relationship between Gradient and you is that of independent contractors and nothing contained herein will be deemed to create a joint venture, partnership or other relationship. Neither Gradient 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.
- 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 Gradient because Gradient was responsible for the preparation of this EULA.