End-User License Agreement
Bayit Home Automation Corp. (“Bayit”)
This end-user license agreement is a legal document that contains the terms and conditions under which limited use of certain software (as defined below) that operates with the Product is licensed to you.
PLEASE READ THIS AGREEMENT CAREFULLY.
USING THE SOFTWARE INDICATES THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. DO NOT USE THE SOFTWARE UNTIL YOU HAVE READ AND AGREED TO BE BOUND BY THIS AGREEMENT. You are agreeing to the terms and conditions set out in this Agreement if you in any way use this Software. If you do not wish to be bound by the terms and conditions set out in this Agreement, refrain from using the software and uninstall the software from all devices prior to any use thereof.
LICENSE GRANT: “Software means all software programs. Applications and associated files provided by Bayit with respect to the Product, all modified versions of and upgrades or improvements to such programs (e.g., those provided via web-based updates), all subsequent versions of such programs, and all copies of such programs and files. Bayit hereby grants you, a single user installing the Software, the right to use, for your personal, non-commercial evaluation purposes, copies of the software on object code form on products that you own. The terms of this agreement will govern any upgrades provided by Bayit that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate end-user license agreement in which case the terms of that end-user license agreement will govern.
EVALUATION LICENSE: The Software covered hereby is a “beta” product and you understand that you are licensing the Software for evaluation purposes.
PROHIBITIONS: The Software is licensed not sold. You only have the non-exclusive right to use the Software. You are not permitted to copy, modify or transfer the software or documentation. You may not: (a) decompile, disassemble or otherwise reverse engineer, breakdown, analyze or otherwise attempt to obtain the source code for the software; or (b) modify, adapt, or otherwise create derivative works from the software; (c) remove or alter any copyright, trademark or other proprietary notice contained in the Software; or (d) use the Software in any manner not set forth in this Agreement or the Software’s documentation. All rights not expressly granted to you by Bayit under this agreement are hereby reserved by Bayit. You will not acquire such rights, whether through estoppel, implication, or otherwise.
USE AND RESTRICTIONS: You are permitted to make backup copies of the Software for archival purposes only. You must reproduce the proprietary notice set forth in the Software and affix them to, or embed them in, all backup copies. You are not permitted to use these programs in connection with a computer service, service bureau, or to use the backup copies other than as a replacement for the original copy.
STORAGE OF PRODUCT ACTIVITY ON CLOUD: By using the Software, you acknowledge and agree that certain device activity information relating to the Product will be transmitted to and stored on Bayit’s Cloud in order to provide better functionality. Such information will be limited to generalized activity information. For the purpose hereof “Cloud” means a technical environment delivering hosted services and resources over the internet in which the services and resources can be accessed in a manner that permits such sources and resources to be made available “on demand”, scaling up or down, to the processing needs of the user over time.
OPEN SOURCE SOFTWARE: You hereby acknowledge that the Software may contain Open Source Software (as defined below). You agree to review any documentation that accompanies the Product or the Software or is identified in the documentation for the Product or the Software in order to determine which portions of the Software are Open Source Software and are licensed under an Open Source Software license. To the extent any such license requires that Bayit provides you the right to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to you in this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this agreement, but solely with respect to such Open Source Software. You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses, if any. Copyrights to the Open Source Software are held by the copyright holders indicated in the copyright notices in the corresponding source files.
For the purposes hereof, “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models.
COPYRIGHT: The software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All titles and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and “applets,” incorporated in the Software), the accompanying printed materials, and any copies of the Software, are owned by Bayit or its suppliers. Therefore, you must treat the Software like any other copyrighted material and in accordance with this agreement.
TERM: This agreement is effective upon your using or installing the Software, which will constitute your acceptance of, and agreement to, this Agreement, and is effective until terminated. The limited license in this agreement will be automatically terminated if you fail to comply with any of the terms and conditions in this Agreement. You agree that upon such termination, you will immediately destroy all programs and documentation, including all copied made or obtained by you and otherwise cease use of this software. All provisions of this Agreement save for the license grant and limited warranty, will survive termination.
LIMITED WARRANTY; EXCLUSIVE REMEDY: EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED HEREIN, THE SOFTWARE, DOCUMENTATION, AND ANY RELATED INFORMATION, GOOD OR SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BAYIT, ITS RESELLERS AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR PARTICULAR PURPOSE, LACK OF VIRUSES, SECURITY, PERFORMANCE, LACK OF NEGLIGENCE, WORKMANLIKE EFFORT, QUIET ENJOYMENT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BAYIT, A DEALER, AGENT OR AFFILIATE SHALL CREATE A WARRANTY.
The entire risk of use, results and performance of the Software is borne by you. Should the Software or related information, goods or services be defective, misused, unsuitable or cause or give rise to any harm or liability whatsoever, you, not Bayit or its suppliers, affiliates, associates, dealers or agents, assume the entire liability, cost of repair, correction or any payment or other remedy whatsoever. Furthermore, no warranty or guarantee is made regarding the use or results of the Software or any related information, goods or services in terms of correctness, accuracy, reliability, timeliness or otherwise. You use and rely on the Software at your own risk.
EXCLUSION OF DAMAGES: TO THIS MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BAYIT, ITS AFFILIATES, ASSOCIATES, DEALERS, AGENTS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF BAYIT OR SUCH OTHER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY: IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF BAYIT, ITS AFFILIATES, ASSOCIATES, DEALERS, AGENTS OR SUPPLIERS TO YOU FOR ALL DAMAGES EXCEED THE LESSER AMOUNT OF 5 DOLLARS ($5.00) OR THE PRICE YOU PAID FOR THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The warranties and remedies here set out are exclusive, and in lieu of all others oral or written, express or implied. Some jurisdictions do not allow exclusion or limitation of implied warranties or of liability for incidental damages, so the foregoing limitations or exclusion may not apply to you. This warranty gives you specific legal rights which vary from jurisdiction to jurisdiction.
U.S. GOVERNMENT RESTRICTED RIGHTS: All Software and Software documentation provided to the U.S. Government is provided with the commercial license rights and restrictions described elsewhere herein. In the event that the prime contract with the U.S. Government does not allow and cannot be modified to allow the delivery of Software and Software documentation with those rights, then all Software provided to the U.S. Government is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 or DFAR 48 CFR 52.227-7013, as applicable. The reseller is responsible for ensuring software is marked with “Restricted Rights Notice” or “Restricted Rights Legend,” as required. All rights not expressly granted are reserved.
EXPORT RESTRICTIONS: You acknowledge that the Software licensed hereunder is subject to the export control laws and regulations of the U.S.A., and any amendments thereof. You will not export or re-export the Software, directly or indirectly, to any countries that are subject to U.S.A. export restrictions or otherwise in violation of applicable law. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or any such list. You further acknowledge that the Software may include technical data subject to export and re-export restrictions imposed by law.
SEVERIBILITY: Any term or provision of this Agreement or any application thereof which may be prohibited or unenforceable by law in a particular jurisdiction shall be interpreted and enforced to the maximum extent allowed in such jurisdiction (which the parties acknowledge could mean severing the provision from this Agreement or, if allowed, enforcing it in a narrower form), without affecting the remainder of this Agreement, or any other application of such term or provision in such jurisdiction, or application of such term or provision in any other jurisdiction.
GOVERNING LAW AND JURISDICTION: The license is governed by the laws of the state of New Jersey, without regard to its conflicts of laws principles, as applied to agreements entered into and to be performed entirely within New Jersey between New Jersey residents. Any action arising out of or relating to this Agreement may be brought exclusively in the appropriate state of federal court in Newark, New Jersey, and Bayit and you irrevocably consent to the jurisdiction of such courts and venue in Newark, New Jersey.
MISCELLANEOUS: This agreement sets forth the entire Agreement between Bayit and you with respect to the Software and use thereof. No provisions of this agreement may be waived, modified or superseded except by written instrument signed by each Bayit and you. Any suppliers of Bayit shall be direct and intended third-party beneficiaries of this Agreement, including without limitation the disclaimers of warranties and limitations on liabilities set forth herein no failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. The language of this Agreement shall not be construed strictly for or against either party, regardless of who drafted such language or was principally responsible for drafting it. This Agreement shall bind and inure to the benefit of the parties and their successors and permitted assigns. In the event of any legal proceeding between the parties arising out of or related to this Agreement, the prevailing party should be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding.