1. IMPORTANT INFORMATION ABOUT THESE TERMS OF SERVICE.
IF YOU ARE A CONTRACT PARTY, YOU ACKNOWLEDGE AND AGREE THAT THE TERMS OF THE RELEVANT SALE AGREEMENT WILL PREVAIL IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF SUCH SALE AGREEMENT AND THE TERMS OF THIS AGREEMENT.
We reserve the right to change in any way (i) any Platform Services, including the addition, modification or removal of features and/or functionality and (ii) this Agreement ((i) and (ii), collectively, "Changes"). We will only provide you with notice of any Changes as and when required by law or as separately agreed in any applicable Sale Agreement; however, the date above first written will be updated each time a Change is made. If we are required by law to provide you notice of Changes, we will do so by notifying you at any address (including email) that you provide to us in connection with your use of the TrustHab Products. If you are not a Contract Party, you may terminate this Agreement at any time by ceasing to use and disconnecting or uninstalling, as the case may be, any and all of your TrustHab Products. Should you fail to promptly do so, you will be bound by this Agreement (as amended by the Changes). If you are a Contract Party, you may only terminate this Agreement as permitted by the terms of the relevant Sale Agreement.
3. USER EQUIPMENT MAINTENANCE AND UPDATES.
YOU ARE SOLELY RESPONSIBLE FOR ANY EQUIPMENT, SOFTWARE OR SERVICES THAT YOU CHOOSE TO USE IN CONNECTION WITH THE TRUSTHAB PRODUCTS (COLLECTIVELY, "THIRD-PARTY EQUIPMENT"), INCLUDING ANY MAINTENANCE OR SUPPORT THEREOF, EXCEPT AS MAY BE SET FORTH IN THE EULA OR APULA, AS THE CASE MAY BE.
In order to use the Platform Services, you will need to ensure that you have a compatible broadband gateway or router. You agree that you will keep such gateway or router connected to the internet at all times while this Agreement is in effect and while you own or use any TrustHab Products. You agree and understand that we may, at any time, upgrade or modify in any way the Connected Device's firmware or the Platform Services remotely. If your Third-Party Equipment does not meet TrustHab's minimum technical requirements (such Third-Party Equipment, "Non-Recommended Equipment"), then you understand and agree that Non-Recommended Equipment may cause damage or failure of the TrustHab Products or the inability to properly install, operate or use the same. NEITHER TRUSTHAB NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS (COLLECTIVELY, THE "TRUSTHAB PARTIES") SHALL HAVE ANY LIABILITY FOR ANY SUCH DAMAGE OR FAILURE OR THE INABILITY TO PROPERLY INSTALL, OPERATE OR USE SUCH TRUSTHAB PRODUCTS. NONE OF THE TRUSTHAB PARTIES WARRANTS THAT ANY NON-RECOMMENDED EQUIPMENT WILL ALLOW YOU TO PROPERLY INSTALL, ACCESS, OPERATE OR USE THE TRUSTHAB PRODUCTS. In the event that you install or use any Non-Recommended Equipment, or any unauthorized device, in connection with the TrustHab Products, or if you modify the TrustHab Products in any way or do not download or allow to be downloaded any updates to the TrustHab Products within a reasonable time after they are made available to you, we reserve the right to deny you support and/or terminate your use of the TrustHab Products and recover any damages resulting from your actions. Unless expressly authorized by us, you agree not to install anything to intercept or receive any of the Platform Services offered to you or to assist any person in intercepting or receiving the Platform Services offered to you. You also agree that you will not in any way impair the integrity of the Platform Services, including, but not limited to, by installing anything on the Third-Party Equipment.
4. USE OF PLATFORM SERVICES.
You agree that only you and/or an Authorized User will use the TrustHab Products. You warrant that you will not resell or permit any person (including an Authorized User) to resell the Platform Services in whole or in part. You will not permit any person (including an Authorized User) to use the Platform Services in any way in violation of any applicable law or regulation or this Agreement. You acknowledge and agree that you are accepting this Agreement on behalf of all persons who use the TrustHab Products (including Authorized Users), and that you are solely responsible for (i) ensuring that all such persons understand and comply with the terms of this Agreement and (ii) any transactions (including purchases) made through or in connection with the Platform Services.
Neither this Agreement nor the Platform Services may be assigned by you, except (i) if you provide us with prompt written notice in the event of a change of ownership or occupancy at the Premises and (ii) the new occupant at the Premises establishes a new account and accepts this Agreement by accessing the TrustHab Products. TrustHab may at any time assign its rights and/or obligations under this Agreement without notifying you.
(i) Length of Term. This Agreement will be effective between you and TrustHab from the earlier of the time that the TrustHab Products are installed or accessed until the date on which this Agreement is terminated. Any Changes shall be effective as between you and TrustHab from the time they are reflected in this Agreement (subject to any termination rights provided herein) and shall be deemed binding amendments to this Agreement.
(ii) Your Termination Rights. You may terminate this Agreement at any time by providing us with written notice of your election to terminate this Agreement and by disconnecting and uninstalling the TrustHab Products, including disconnecting, uninstalling and revoking any access that any person (including any Authorized User) may have to the TrustHab Products, unless you are a Contract Party, in which case the relevant Sale Agreement shall govern your ability to terminate this Agreement.
(iii) TrustHab's Termination Rights. TrustHab reserves the right, subject to applicable law, to terminate or suspend its provision of the Platform Services to you, in its sole discretion, without notice or cause, unless you are a Contract Party, in which case the relevant Sale Agreement shall govern our ability to terminate this Agreement.
(iv) Data Transfer Following Termination. Notwithstanding termination of this Agreement, data transfer to the TrustHab Products may continue until such time as you disconnect and uninstall the TrustHab Products (including with respect to Authorized Users) or the Platform Services are cancelled or terminated.
(v) Your Termination Obligations. You agree to immediately cease, and to cause all Authorized Users to cease, use of all TrustHab Products upon termination of this Agreement or the Platform Services. (vi) Termination of Platform Services for Non-Payment. You understand and agree that your or your landlord's or property owner's failure to pay any amounts due to TrustHab or a relevant third party in respect of the TrustHab Products when the same shall be due and payable will give TrustHab the right, in its sole discretion, without notice, in compliance with applicable law, to suspend or disconnect any Platform Services in your possession.
7. NO WARRANTY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRUSTHAB PRODUCTS ARE PROVIDED "AS IS," WITHOUT RECOURSE OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NONE OF THE TRUSTHAB PARTIES REPRESENTS OR WARRANTS THAT (I) THE TRUSTHAB PRODUCTS WILL DELIVER A PARTICULAR RESULT OR MEET YOUR SPECIFIC NEEDS, FUNCTION WITHOUT INTERRUPTION, OR OPERATE AS EXPECTED OR NEEDED, WITHOUT ERRORS OR DELAYS OR (II) THAT ANY DATA WILL BE TRANSMITTED WITHOUT CORRUPTION OR OTHER ISSUE OR WILL WORK WHEN USED WITH A THIRD-PARTY DEVICE. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED.
8. LIMITATION OF TRUSTHAB'S LIABILITY.
(i) Limitations. The limitations of liability set forth in this Section 8 apply to acts, omissions, and negligence of the TrustHab Parties, including underlying third-party service providers (and their respective officers, employees, agents or contractors) which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine.
(ii) Third-Party Equipment. THIRD-PARTY EQUIPMENT MAY NOT FUNCTION AS INTENDED OR BE DAMAGED AS A RESULT OF THE INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR OR REMOVAL OF THE PLATFORM SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NONE OF THE TRUSTHAB PARTIES SHALL HAVE ANY LIABILITY FOR ANY DAMAGE, LOSS, DESTRUCTION, MALFUNCTION OR INTERFERENCE OF ANY KIND WITH THIRD-PARTY EQUIPMENT, EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF ANY TRUSTHAB PARTY, IN WHICH CASE TRUSTHAB SHALL PAY IN ITS SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF DAMAGED THIRD-PARTY EQUIPMENT UP TO A MAXIMUM OF THE PRICE OF THE REPLACEMENT CONNECTED DEVICE, NOT INCLUDING ANY LABOR OR INSTALLATION. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY. YOU UNDERSTAND THAT WE OR THIRD PARTIES MAY NEED TO ACCESS YOUR THIRD-PARTY EQUIPMENT IN CONNECTION WITH THE INSTALLATION OR REPAIR OF THE TRUSTHAB PRODUCTS AND THAT SUCH ACCESS MAY VOID VARIOUS WARRANTIES ON YOUR THIRD-PARTY EQUIPMENT. IN SUCH CASE, NONE OF THE TRUSTHAB PARTIES SHALL HAVE ANY LIABILITY IN ANY WAY FOR SUCH WARRANTIES BEING VOIDED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU HEREBY WAIVE ANY AND ALL ALLEGATIONS, SUITS, CLAIMS, CAUSES OF ACTION AND PROCEEDINGS (COLLECTIVELY, "CLAIMS") AGAINST THE TRUSTHAB PARTIES IF THE PLATFORM SERVICES CAUSES ANY INTERFERENCE, DISRUPTION OR INCOMPATIBILITY WITH ANY THIRD-PARTY EQUIPMENT, AND YOUR SOLE REMEDY IN SUCH A SCENARIO WILL BE TO TERMINATE THIS AGREEMENT AS SET FORTH IN SECTION 6.
(iii) Viruses; Platform Services Installation. Your use of the Platform Services may require an internet connection or special software or applications. We make no representation or warranty that any such special software or application installed on your Third-Party Equipment will be free of a virus, spyware, malware, ransomware or other harmful feature (collectively, "Malware"). You acknowledge and agree that you will be solely responsible for protecting your Third-Party Equipment from Malware. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NONE OF THE TRUSTHAB PARTIES SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM, OR RELATED TO, ANY MALWARE. In addition, as part of installing or using the Platform Services, your Third-Party Equipment may be modified, and we do not represent or warrant that such modifications will not disrupt the proper functioning of your Third-Party Equipment or cause any damage thereto. We strongly recommend that you backup all files and data on any Third-Party Equipment prior to installing or using the Platform Services. You understand that failure to do so may jeopardize files and/or data, and none of the TrustHab Parties shall have any liability for the loss of any files and/or data in any event.
(iv) TrustHab Products Errors. The TrustHab Products may be from time to time fail to work as intended. They are not designed to be used in situations in which such failure could lead to injury to business, persons, property or environment, and you agree to assume the risk of any such failure. TrustHab shall not be liable for any failure of the TrustHab Products, directly indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or your property, inability to obtain access to the Premises, failure of any internet connection, failure of utility facilities, strike, labor, dispute, riot or insurrection, war, explosion, malicious mischief, fire, flood, lightning, earthquake, wind, ice, extreme weather conditions or other acts of God, failure or reduction of power or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the TrustHab Products.
(v) Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may use third parties to provide any of the Platform Services. In any such case, TrustHab shall not be responsible for such third party's performance or non-performance of its services, equipment, infrastructure or content, regardless of whether they constitute part of the Platform Services. In the event that you interact with any agent or employee of TrustHab or any third-party provider or supplier in connection with the installation, maintenance or provision of the TrustHab Products, no undertaking, representation or warranty made by such person will be binding on TrustHab. In addition, you acknowledge and agree that some Platform Services may provide access to third parties' services or content, and in such case, you understand and agree that TrustHab will not be responsible, and shall have no liability, for any such services or content that are not provided by us. You should address any support-related issues to the relevant third-party provider. For the avoidance of doubt, even if the TrustHab Products are compatible with any third-party products, we do not endorse or warrant such products or any products that may be advertised over the Platform Services. Should you or your Authorized User connect to a third-party product, you authorize TrustHab to transfer any information requested by such third-party product to be transferred in connection with its services.
(vi) Limitation of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NONE OF THE TRUSTHAB PARTIES SHALL UNDER ANY CIRCUMSTANCES OR LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, TORT OR CONTRACT) HAVE ANY LIABILITY TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, COSTS, FEES (INCLUDING ATTORNEYS' FEES), EXPENSES, LIABILITIES OR OTHER COSTS (COLLECTIVELY, "LOSSES"): (I) INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (A) YOUR RELIANCE ON, OR USE OF, THE TRUSTHAB PRODUCTS OR (B) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE TRUSTHAB PRODUCTS (INCLUDING, BUT NOT LIMITED TO, ANY MISTAKES, OMISSIONS, INTERRUPTIONS, COMPUTER OR OTHER TRUSTHAB PRODUCT BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES OR DATA, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION OR FAILURE OF PERFORMANCE OF THE TRUSTHAB PRODUCTS, THIRD-PARTY EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF INFORMATION OR DATA OR DAMAGE TO YOUR HEATING, VENTILATION AND AIR CONDITIONING SYSTEM); OR (II) LOSSES RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING ALLEGING THAT YOUR OR ANY OTHER PERSON'S USE OF THE TRUSTHAB PRODUCTS INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. SUBJECT TO APPLICABLE LAW, IN NO EVENT SHALL ANY TRUSTHAB PARTY'S LIABILITY TO YOU FOR ANY DAMAGES TO YOU EXCEED THE TOTAL PRICE PAID BY YOU FOR THE TRUSTHAB PRODUCTS.
(vii) No Other Remedies. Your sole and exclusive remedies under this Agreement are as expressly set forth herein. Should any of the limitations of liability, or the exclusion or limitation of implied warranties, incidental or consequential damages, not be permitted by applicable law, then the TrustHab Parties' liablity shall be limited to the maximum extent permitted by applicable law.
(viii) Survival. All representations and warranties (including the disclaimer of any representations and warranties), indemnifications and limitations of liabilities set forth in this Agreement, and any other provisions that, by their terms, survive the termination of this Agreement shall survive the termination of this Agreement.
9. INDEMNIFICATION AND LIABILITY.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU SHALL BE RESPONSIBLE FOR, AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS, EACH TRUSTHAB PARTY FROM AND AGAINST ANY LOSSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) INCURRED BY SUCH TRUSTHAB PARTY IN CONNECTION WITH ANY CLAIMS OR JUDGMENTS ARISING OUT OF, DIRECTLY OR INDIRECTLY, OR RELATING IN ANY WAY TO ANY OF THE FOLLOWING, WHETHER BY YOU OR AN AUTHORIZED USER: (I) MISUSE OF THE TRUSTHAB PRODUCTS; (II) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM OR RELATING TO MISUSE OF THE TRUSTHAB PRODUCTS OR ANY THIRD-PARTY EQUIPMENT; (III) BREACH OF THIS AGREEMENT, REGARDLESS OF MATERIALITY; (IV) ACCOUNT ACCESS OR ACTIVITY DUE TO THE FAILURE TO PROTECT LOGIN CREDENTIALS; AND (V) ANY CLAIMS BY ANY OF YOUR AUTHORIZED USERS AND LOSSES RESULTING FROM YOUR OR YOUR AUTHORIZED USERS' BREACH OR ALLEGED BREACH OF THIS AGREEMENT.
10. GOVERNING LAW; DISPUTE RESOLUTION; MISCELLANEOUS.
a. Governing Law. This Agreement and any other documents incorporated herein by reference are governed by, and shall be construed in accordance with, the laws of the State of Florida, without regard to its conflict of law principles.
b. Dispute Resolution. Any Claims that may arise out of, or be in any way connected to, this Agreement shall be resolved in accordance with (i) the "Dispute Resolution" section of the EULA, if you are not a Contract Party or (ii) the relevant Sale Agreement, if you are a Contract Party.
11. THIRD-PARTY SUBSCRIPTIONS.
If you sign up for any paid service with any third party, terms of that relationship are between you and that third party. You acknowledge that any charges that you incur with such third party, including charges resulting from accessing the internet, purchasing or subscribing to other offerings via the internet or purchasing equipment for use with the Platform Services. You agree that you are solely responsible for all charges payable to third parties, including all applicable taxes.
You agree to accept all communications from us regarding any use of the TrustHab Products at the physical address and/or email address that you provide during registration or as may be set forth in your Sale Agreement. You agree to promptly update any changes to your account registration information. TrustHab may rely on the physical address and email address that you last provided to us. You agree to waive all Claims resulting from failure to receive communications because of changes in your physical address or email address. From time to time, you agree that we may communicate with you to provide you with information about TrustHab products.
You agree to be bound by any affirmation, assent or agreement that you transmit through the Platform Services you access, regardless of method. You agree that your clicking on "I agree," "I consent," "I accept" or other similarly-worded electronic button or entry field with your mouse, keystroke or other device will be and constitute your legally binding and enforceable and the legal equivalent of your handwritten signature.