REMOTELYNC TERMS OF SERVICE AND END USER LICENSE AGREEMENT
The Services, as defined herein, are provided by Walter Kidde Portable Equipment Inc., a Delaware corporation, located at 1016 Corporate Park Dr., Mebane, NC 27302 (“Kidde”).
These Terms of Service and End User License Agreement (“Terms” or “Agreement”) govern your access to, and use of the Products and Services as defined below. Your purchase of any Kidde Product is governed by the limited warranty provided with that product (“Limited Warranty”) and may further be governed by the Standard Terms and Conditions of Sale (https://www.kidde.com/home-safety/en/us/terms-conditions-details/). All additional guidelines, terms or rules, and our Privacy Notice (“Privacy Notice”) (https://www.kidde.com/home-safety/en/us/privacy-notice/) are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Products and Services.
!!! WARNING !!!
THE REMOTELYNC APPLICATION AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN, ANY DATA (AS DEFINED IN THIS AGREEMENT), CONTENT OR OTHER INFORMATION PROVIDED BY THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE. THERE IS NO GUARANTEE THE APPLICATION, ANY PRODUCT, OR THE ALERT SERVICE WILL FUNCTION AS INTENDED, OR THAT ALL OR ANY FUNCTIONALITY WILL BE OPERATIONAL AT ALL TIMES.
In this Agreement, the following words shall be defined as:
In this Agreement, the following words shall be defined as:
(i) “Mobile Device” means any mobile device you or your designees own or control;
(ii) “Application” means the REMOTELYNC Application and any of the related software, website(s), updates, content and documentation;
(iii) “Product” means any of the hardware products connected to or through the Services, including but not limited to any camera, monitoring device, bridge, or connected Kidde Wireless Alarm products configured to connect to the Services;
(iv) “Services” include but are not limited to any REMOTELYNC Application, REMOTELYNC services, REMOTELYNC Cloud, any REMOTELYNC products configured to be used in conjunction with REMOTELYNC services, any associated websites, and any Kidde product used in conjunction with REMOTELYNC products and services.
(v) “Alert Service” means the service provided in connection with the Application as indicated in Section 2 below;
(vi) “REMOTELYNC Cloud” means REMOTELYNC Cloud Servers and/or any connected device used by Kidde to provide Services;
(vii) “Packaged System” means any Application, Product, Service, or REMOTELYNC Cloud, or any software or component thereof;
(viii) “Signals” means the any alert communication or data associated with The Alert Service that may be delivered or received by your Mobile Device or one of the connected devices or the REMOTELYNC Cloud.
(ix) “Video” means any audio, video, video clip, and data associated therewith that is collected, transmitted, or stored by the Products or Services.
(x) “Data” means and Signal, electronic messages (e.g. push notifications), location-based information, Video or other information collected, transmitted or stored by the Products or Services.
(xi) “you” means any person or entity who accesses or uses the Services and any person or entity who creates an Account (as defined in Section 4A below) and accepts these Terms;
(xii) “Designees” means those persons whom you designate in your application contact list or allow to access the Services through your Account; and
(xiii) “Licensor” or “we” or “Kidde” means Walter Kidde Portable Equipment Inc., its successor or assigns.
THESE TERMS ARE A BINDING LEGAL AGREEMENT AND LIMITS OUR LIABILITY TO YOU. READ IT CAREFULLY.
BY ACCEPTING THESE TERMS THROUGH A SITE, WEB APP OR MOBILE APP, OR BY ACCESSING, DOWNLOADING OR USING THE SERVICES, YOU:
- ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE TERMS HEREIN;
- AGREE TO BE BOUND BY THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE;
- AGREE THAT THE USE OF THE PRODUCTS OR SERVICES ARE SUBJECT TO THESE TERMS; AND
- REPRESENT YOU ARE OF LEGAL AGE AND HAVE THE LEGAL RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THIS AGREEMENT;
YOU SPECIFICALLY UNDERSTAND, ACKNOWLEDGE AND AGREE TO SECTIONS 7 AND 8 OF THIS AGREEMENT. THOSE TERMS (AND OTHERS IN THIS AGREEMENT) LIMIT KIDDE’S LIABILITY TO YOU.
IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD THE APPLICATION; YOU MUST DELETE ANY COPY IN YOUR POSSESSION OR CONTROL. YOU MAY NOT INSTALL, ACCESS OR USE THE REMOTELYNC CLOUD, APPLICATION, OR SERVICES.
THERE ARE NO EXPRESS WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION IN THIS AGREEMENT. LICENSOR DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD AND WORKMANLIKE SERVICE, ACCURACY, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. FOR INFORMATION RESPECTING EXPRESS WARRANTIES PROVIDED UNDER THIS AGREEMENT, SEE SECTION 7 BELOW.
A. Grant of License. Subject to this Agreement, we grant you a limited, non-exclusive, non-transferable, personal, revocable, non-commercial license to (i) download, install and use the Application on Mobile Devices in connection with the use of the Products and Services; (ii) configure one or more Products to transmit Signals and/or Video to the Services to be re-transmitted to your Mobile Device via the Application; and (iii) configure one or more Product(s) to communicate with one or more other Product(s) and your Wi-Fi router and to transmit Signals to the REMOTELYNC Cloud to be re-transmitted to your Mobile Device via the Application.
B. License Limitations. The licenses granted in Section 1A are conditioned upon your compliance with the following limitations:
(i) No Reverse Engineering. You may not, and you agree not to, or to enable others to, decompile, decipher, disassemble, reverse engineer or otherwise attempt to derive or access source code of the Packaged System, or circumvent any technical limitations in the Packaged System that limit or restrict access to or use of the Packaged System or any content, file, or other work, except as expressly permitted by applicable law. You may not, and you agree not to, or to enable or permit others to, breach the security of the Mobile Device, or the Packaged System for any purpose, including for the purpose of copying any other user’s information. Any attempt to do so shall be a violation of the rights of Licensor. If you breach this restriction, you may be subject to suspension of access to the Packaged System, prosecution and damages.
(ii) No Distribution, Rental or Transfer. You may not distribute, publish, rent, lease, lend, transfer, sub-license, disclose or otherwise commercially exploit the Application, Services, or REMOTELYNC Cloud to any third party.
(iii) No Modification or Derivative Works. You may not modify or create derivative works of the Packaged System, in whole or in part.
(iv) Proprietary Notices. You may not remove, obscure or alter any proprietary rights notices that may be contained in, or displayed in connection with, the Packaged System.
(v) Non-Permitted Uses. Without limiting any of the foregoing, you may not make any use of the Application, Services, or REMOTELYNC Cloud in any manner not expressly permitted by this Agreement.
C. Reservation of Rights and Ownership. Licensor, its parent or its suppliers own all right, title and interest, including all intellectual property rights, in and to the Application and reserve all rights not expressly granted to you in this Agreement. The Application is protected by copyright and other intellectual property laws and treaties. Unpublished rights are reserved under the copyright laws of the United States. To the extent the Application may be used to reproduce materials, it is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.
D. Updates. From time to time in our sole discretion, we may develop and/or provide Application updates, including upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. We have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. This Agreement applies to Updates to the Application as well as any services accessed through the Application (if any) that Licensor may, in its sole discretion, provide or make available to you. If Licensor provides additional terms along with an Update, those terms will apply to the Update. If Licensor provides you an Update, Licensor may, at its sole discretion, require you to use the Updated version and cease use of earlier versions. Licensor reserves the right to update or discontinue any product or service made available to you through use of the Application.
You must promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
2. The Alert Service.
A. Alert Service. The Application permits you (and others you designate) to receive Signals and any accompanying Video from Products installed in a premises. Once Products are properly configured and connected to the REMOTELYNC Cloud, the Application can receive Signals and/or Video on a Mobile Device owned by you or any Designees. We have no obligation to provide any form of service other than the Alert Service. We are providing no form of service to anyone other than you. There are no third-party beneficiaries under this Agreement. The Alert Service may include the transmission, delivery or receipt of Signals and other Data to or from your Mobile Device.
B. When Alert Service Begins. The Alert Service will not begin until you have properly activated the Alert Service through the Application, including the proper configuration Products and confirming transmission to REMOTELYNC. Alert Service cannot be rendered if we do not receive a Signal or Data. To use the Alert Service, Products must be able to transmit a Signal and/or Video to the REMOTELYNC Cloud and the REMOTELYNC Cloud must be able to re-transmit that Signal and Video to your Mobile Device. If a Product or Mobile Device is not connected to the Internet or the REMOTELYNC Cloud or does not have an adequate upload/download connection speed or latency, you may not receive a Signal or Video. Under any such circumstances, you agree that we cannot be held liable for any damages, including death, personal injury, property damage, incidental, or consequential damages, if we are unable to provide the Alert Service. The Alert Service may be suspended temporarily, without notice, for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Kidde does not offer any specific uptime guarantee for the Services.
C. We May Change Services. We may modify, terminate or suspend any particular form of the Alert Service at any time, including, to the extent we are permitted, as requested or required to do so by any applicable governmental authority, standards setting entity or insurance interest.
D. Your Rights are Limited. All software, hardware, firmware, shareware, codes, information and documentation in connection with, related to, or resulting from the Application and Alert Service are Licensor’s sole and exclusive property and you have no rights whatsoever in any of the foregoing.
Licensor may require payment of periodic fees for use by you of certain features of the Services. Licensor will notify you if any such fee is imposed. Immediately following any such notice and continuing until the termination of these Terms, you shall pay Licensor in advance in accordance with our fee schedule (the “Fee”). We may increase or decrease the Fee by written or electronic notice to you. Upon termination of the Terms, Licensor shall have no obligation to refund any portion of the Fee with respect to any period after the termination of the Terms.
4. Permitted Uses and Restrictions.
A. Legal Compliance. You agree to use the Application and Alert Service in compliance with all applicable laws, regulations and our policies as published from time-to-time in notifications we send to you. To use the Application, you must register for a user account (“Account”). You represent and warrant that: (i) your use of the Application is solely to obtain the Alert Service (ii) you will not use the Services for any illegal, unlawful or improper purpose (as determined solely by Licensor), including but not limited to harassment or simulation of untrue or fictitious emergency scenarios, (iii) all required registration information that you submit is truthful and accurate. We may use and maintain the phone number, name and contact information, email address(es) and any other information you provide for purposes of providing you with access to and servicing your Account, collecting and billing Fees, improving our Products and Services, and to permit third parties to support our business (in which case, we will require such third parties to agree to use such information solely for the same purposes for which we may use such information), to respond to law enforcement requests and subpoenas, and in connection with the sale, merger, liquidation, dissolution, reorganization, assignment or other transfer of Licensor (in which case, Licensor will require the potential successor entity to agree to use such information solely for the same purposes for which we may use such information).
B. Export Restrictions. You represent and warrant 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; and (ii) you are not listed on any United States government list of prohibited or restricted parties. The Terms are subject to all applicable export restrictions. You will comply with all applicable international and national laws, rules and regulations that apply to the Application and your use of the Application, including the U.S. Export Administration Regulations, as well as end user, end use, and destination restrictions issued by U.S. or other governments. You acknowledge that the Application is of U.S. origin and subject to U.S. export jurisdiction.
C. Unauthorized Access to Information. You understand and accept that there is a risk that unauthorized persons may gain access to the Application, Products, and/or Data. You consent to our provision of the Data through the Application and any Product. You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. You agree to immediately notify Kidde of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. If we terminate or suspend the Terms, we may immediately, and without notice, disable your access to the Application or your Account, and/or cancel all passwords or other access codes. Kidde is not liable for any loss or damage arising from your failure to comply with the above requirements
D. Mobile Devices/Reliability of Services. You will provide, at your own expense, the proper Mobile Device and communication services (Internet, cellular, Wi-Fi or otherwise) needed to access and use the Application, each connected Product, and the Alert Service. We do not guarantee that the Application, any Product, or the Alert Service can be accessed through, or will be compatible with, all mobile devices or communication services. You acknowledge that the Application and Alert Service are not error-free or 100% reliable or 100% available. The Application or Alert Service may fail due to a variety of circumstances, including circumstances or conditions beyond our control. You understand and agree that communication services may be interrupted, circumvented or otherwise compromised. Such communication services are beyond our control, and we may not be able to assist in resolution of problems with respect to the Application, the connection of any of the Products, or the Alert Service. Your use of the Application any connected Product, and/or the Alert Service may be limited by your communications services provider or by the capabilities or capacities of your Mobile Device. If your Mobile Device or wireless communication services are incompatible, inoperative, interrupted or circumvented, or in ‘Airplane Mode’ or similar modes without radio communication, no Data will be received by Licensor and the Application and Alert Service may not be available. YOU AGREE THAT YOU WILL NOT RELY ON THE ALERT SERVICE FOR ANY LIFE SAFETY OR CRITICAL PURPOSES. MOBILE NOTIFICATIONS REGARDING THE STATUS AND ALARMS ON YOUR REMOTELYNC PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY-NOTIFICATION SYSTEM. THE REMOTELYNC APPLICATION AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN, ANY DATA (AS DEFINED IN THIS AGREEMENT), CONTENT OR OTHER INFORMATION PROVIDED BY THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE. THERE IS NO GUARANTEE THE APPLICATION, ANY PRODUCT, OR THE ALERT SERVICE WILL FUNCTION AS INTENDED, OR THAT ALL OR ANY FUNCTIONALITY WILL BE OPERATIONAL AT ALL TIMES.
E. Licensor Responsible for Support. We alone shall be responsible for providing all maintenance and support necessary to use the Application, any Product, or the Services. (See Section 7 below for more information regarding our warranty and service obligations.) You and we understand, acknowledge and agree that Apple shall have no such obligation.
F. Third Party Materials. The Application may display, include or make available third party content (including data, information, applications and other products, services and/or materials) or provide links to third-party websites or services, including through third-party advertising or the use of third-party services such as IFTTT (https://ifttt.com/) (collectively, the "Third Party Materials"). The Application may include or be bundled with other software programs licensed under different terms, including open source software. We are not responsible for any third party software and shall have no liability for your use of such third party software. Any third party or open source software used in the Application is subject to the specific terms of such software. You acknowledge and agree that we are not responsible for any Third Party Materials, including their reliability, usefulness, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them at entirely at your own risk and subject to such third parties' terms and conditions.
G. Questions, Complaints and Claims. Your questions, complaints and claims should be addressed to Licensor as follows:
Licensor’s Name: Walter Kidde Portable Equipment Inc.
Licensor’s Physical Address: 1016 Corporate Park Dr., Mebane, NC 27302
Licensor’s E-mail Address: product.support@KiddeUS.com
5. Privacy and Data Protection.
A. Licensor and its subsidiaries and agents may collect and use personal, geographic, diagnostic, technical, usage and related information, including information about your Mobile Device, Product, and the Application gathered periodically to facilitate the provision of software updates, product support and other services to you, and to verify compliance with the Terms. For more information about how we collect, use, share and otherwise process information, please see our Privacy Notice.
B. The Application and Alert Service are primarily intended for purely personal and household use. Nonetheless, data protection and privacy laws where you live may impose certain responsibilities on you and your use of the Application, Products and Services and any data that you collect using Kidde’s Products and Services. For certain video, audio, and facial recognition data that you collect using the Products and Services as the Account owner, you are the controller of that data and Kidde is the processor of that data, under applicable laws. You agree that you (and not Kidde) are responsible for ensuring that you comply with any applicable laws when you use the Products and Services, including, but not limited to, (i) any laws relating to the recording or sharing of video or audio content that includes third parties or public spaces, or (ii) any laws requiring notice to third parties, or consent or explicit consent of third parties with respect to your use of any Product including those with video capability.
6. Term and Termination.
A. The term of this Agreement begins when you download or install the Application and will continue in effect until terminated by you or us as set forth in this section.
B. You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device(s).
C. We may terminate this Agreement at any time without notice for any or no reason. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
D. Upon termination:
(i) All rights granted to you under the Terms will also terminate; and
(ii) You must cease all use of the Services, and delete all copies of the Application from your Mobile Device and account.
E. Termination will not limit any of our rights or remedies at law or in equity.
F. If a court of competent jurisdiction holds that any provision of this Agreement, or the application thereof to any person or under any circumstance, is invalid or unenforceable for any reason or to any extent, the remainder of this Agreement shall remain in full force and effect as long as the essential purpose hereof for each party remain valid, binding and enforceable. Any provision held to be unenforceable or invalid shall be limited only as specifically provided by such court and it shall remain enforceable and valid with respect to all other persons, under all other circumstances and in all other jurisdictions.
7. Disclaimer of Warranties.
A. THE WARRANTIES FOR THE PRODUCTS ARE SET FORTH IN THE LIMITED WARRANTIES THAT ACCOMPANY EACH PRODUCT.
B. THE SERVICES ARE AT YOUR SOLE AND EXCLUSIVE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND RESULTS. THE SERVICES ARE NOT INTENDED TO REDUCE ANY RISK OF LOSS, HARM, OR DANGER. THE PRICE OF THE APPLICATION, ANY PRODUCT OR SERVICE IS INSUFFICIENT TO GUARANTEE THAT NO LOSS OR DAMAGE WILL OCCUR. THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITH ALL FAULTS AND, WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT (i) THE FUNCTIONS CONTAINED IN THE APPLICATION, ANY PRODUCT, OR SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, (iii) ANY DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES MAY NOT BE COMPROMISED, CIRCUMVENTED OR WILL IN ALL CASES PROVIDE THE ALERTS, VIDEO, MONITORING OR RESPONSE AS INTENDED. IF YOU USE ANY THIRD-PARTY MATERIALS IN CONNECTION WITH THE PRODUCTS OR SERVICES, YOU DO SO AT YOUR OWN RISK. WE DO NOT PROVIDE, REVIEW OR ENDORSE ANY OF THE THIRD-PARTY MATERIALS AND YOU AGREE THAT WE CANNOT BE HELD LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING DAMAGES FOR DEATH, PERSONAL INJURY, PROPERTY DAMAGE, MONETARY LOSS, INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY THE USE OF SUCH THIRD-PARTY MATERIALS.
C. To the maximum extent permitted by applicable law THE APPLICATION IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. Licensor and its parent, affiliates and suppliers hereby disclaim all OTHER warranties and conditions, whether express, implied or statutory, including any IMPLIED warranties, DUTIES or conditions of MERCHANTABILITY OR fitness for a particular purpose. Also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement, LACK OF VIRUSES OR BUGS, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS with regard to THE APPLICATION. Licensor and its parent, affiliates and suppliers do not warrant that the operation of the APPLICATION will be UNINTERRUPTED or error-free or that any defects will be corrected. THE ENTIRE RISK ARISING OUT OF THE APPLICATION REMAINS WITH YOU.
8. Limitation of Liability
THIS SECTION SIGNIFICANTLY LIMITS OUR LIABILITY TO YOU AND THIRD PARTIES. READ THIS SECTION CAREFULLY.
A. INSURANCE. WE ARE NOT AN INSURER AND THE ALERT SERVICE IS NOT A SUBSTITUTE FOR INSURANCE. THE AMOUNT WE CHARGE YOU FOR OUR PRODUCTS AND/OR SERVICES REFLECT THE COST OF GOODS AND SERVICES WE PROVIDE, NOT ANY LOSSES, DAMAGES OR EXPENSES (COLLECTIVELY, “DAMAGES”) YOU OR ANY PERSON OR ENTITY NOT A PARTY TO THE TERMS (EACH, A “THIRD-PARTY”) MAY INCUR. YOU SHOULD PROTECT AGAINST ANY RISK OF LOSS WITH THE APPROPRIATE INSURANCE COVERAGE, AND YOU ARE RESPONSIBLE FOR OBTAINING ALL INSURANCE COVERAGE YOU BELIEVE IS NECESSARY. TO THE FULLEST EXTENT PERMITTED BY APPLICALBE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE KIDDE AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
B. EXCLUSIONS OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS PARENT, AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS; DAMAGES TO ANY COMPUTER, DEVICE, OR SYSTEM; LOSS OF DATA, GOODWILL, USE OR OTHER LOSSES) ARISING OUT OF OR IN ANY WAY RELATED TO THE APPLICATION, SERVICES OR THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE BASIS OF THE CLAIM AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES OR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
C. LIMITATION OF LIABILITY. LICENSOR’S AND ITS PARENT’S, AFFILIATES’ AND SUPPLIERS’ ENTIRE LIABILITY UNDER THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE APPLICATION, UP TO THE GREATER OF $100 OR THE TOTAL AMOUNTS ACTUALLY PAID BY YOU FOR THE PRODUCTS AND SERVICES GOVERNED BY THE TERMS OF THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. NO ACTION, REGARDLESS OF FORM, RELATING TO THE APPLICATION MAY BE BROUGHT BY YOU MORE THAN ONE YEAR AFTER YOU HAVE KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF ACTION.
D. Your Indemnity Obligation. You will indemnify, defend and hold Licensor, its parents, subsidiaries, affiliates and suppliers, and their respective officers, directors and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use of the Services, your use of the Application, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
9. Controlling Law and Severability.
This Agreement will be governed by and construed in accordance with the laws of North Carolina, excluding its conflict of law principles. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10. Force Majeure.
Our failure to perform or provide or properly perform or provide the Alert Service and/or the unavailability or interruption of the Alert Service will be excused, and we will not be liable for any related damages, to the extent the event is beyond our reasonable control, including any act of God, hurricanes, fire, flood, explosion, epidemic, pandemic, civil commotion, insurrection, riot, strike, industrial or labor dispute of any kind (whether of our own or third-party employees), breakdown of facilities, microwave or other electrical, or physical signal interference or governmental acts or orders or restrictions.
The Terms constitute the entire agreement between Licensor and you regarding the Services and supersedes all prior or contemporaneous understandings regarding such subject matter. Licensor may amend or modify the Terms at any time by delivering a modification notice (each a “Notice”) to you via e-mail at the e-mail address you provide registering on our website. Any Notice shall, once transmitted, amend the terms and conditions of the Terms. If you (i) object to any amended terms; (ii) you do not agree to the Terms or (iii) become dissatisfied with the Alert Service or the Application in any way, your sole recourse is to immediately discontinue use of the Alert Service and the Application. You may not amend or modify the Terms unless such amendment or modification is in writing and signed by Licensor. When used in the Terms, the term “including” means “including, without limitation or example.” Section headings are for convenience only and are not part of the Terms. References to the singular shall include the plural and references to the plural shall include the singular. You may not assign the Terms. Licensor may assign all or any portion of the Terms.
12. Additional Apple Device and Application Terms
In the event you are using the Alert Services in connection with a device provided by Apple, Inc. (“Apple”) or the Application obtained through the Apple App Store, the following additional terms shall apply:
A. Both you and Kidde acknowledge that this Agreement is concluded between you and Kidde only, and not with Apple, and that Apple is not responsible for the Application or the Content;
B. The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Service;
C. You will only use the Application in connection with an Apple device that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service;
D. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
E. In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
F. You acknowledge and agree that Kidde, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
G. You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Kidde, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
H. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
I. Both you and Kidde acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
J. Both you and Kidde acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.