This End User License Agreement (this "EULA") is a binding contract between you ("you" or "your") and TrustHab, LLC ("TrustHab", "we", "us or "our"), a Florida limited liability company, and certain of its affiliates ("Affiliates" and, together with TrustHab, the "TrustHab Parties") and applies to the use of TrustHab's mobile platform (the "Mobile Platform") and website ("Web Platform" and, together with the Mobile Platform, the "Platform Services"), which may be used in connection with TrustHab connected devices (the "Connected Devices"). Certain use of the TrustHab Products is also governed by the TrustHab Terms of Service (the "Terms of Service"), which may be accessed by clicking the following link: https://trusthab.com/terms-of-service.html.
You acknowledge and agree that this EULA is between you and the TrustHab Parties, and not with any third party (including, but not limited to, Apple, Google or any mobile carrier) and that TrustHab is solely responsible for the TrustHab Products, except in situations where you have enabled third-party control of your TrustHab Product.
THIS EULA CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IT INCLUDES VARIOUS LIMITATIONS ON AND EXCLUSIONS OF OUR LIABILITY TO YOU, YOUR INDEMNITY OF US AND DISPUTE RESOLUTION PROVISIONS THAT GOVERN HOW DISPUTES WILL BE RESOLVED, INCLUDING ARBITRATION AND A CLASS ACTION WAIVER.
BY CLICKING "I AGREE", "I CONSENT", "I ACCEPT" OR ANY SIMILARLY-WORDED ELECTRONIC BUTTON OR ENTRY FIELD WITH YOUR MOUSE, KEYSTROKE OR OTHER DEVICE, OR BY USING THE TRUSTHAB PRODUCTS, YOU SIGNIFY THAT YOU HAVE READ, UNDERSTAND AND AGREED TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH ANY PART OF THIS EULA, YOU MUST NOT ACCEPT THIS EULA AND MAY NOT USE THE TRUSTHAB PRODUCTS.
1. SCOPE OF LICENSE.
You must be 18 years old and a resident of the United States of America to use the Platform Services. You agree that you may and will only use the Platform Services in a manner consistent with this EULA.
3. RESTRICTED USE.
You may not rent, lease, lend, sell, redistribute, sublicense, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the TrustHab Products. Any attempt to do so, including any alteration of any proprietary notices, is a violation of the rights of TrustHab and its licensors. You also also acknowledge and agree that you may not allow any person to use the Platform Services if such person is not specifically authorized by your landlord or property owner to have access to the Platform Services. If you breach these restrictions, you may be subject to prosecution and liable to TrustHab and/or its licensors for damages.
The TrustHab Products may automatically download and install updates from TrustHab from time to time, which are designed to improve, enhance and further develop the TrustHab Products and may take the form of big fixes, new or enhanced functions or entirely new software or firmware. You agree to receive and install such updates as and when TrustHab is able to connect with your TrustHab Products for purposes of providing such updates and deliver such updates to you. If you do not allow such updates to be installed on your TrustHab Products within a reasonable period of time after they are made available, then TrustHab may, in its sole discretion, disconnect and cease providing the Platform Services to you. You further agree that your landlord or property owner may from time to time change certain parameters of the TrustHab Products, including, but not limited to, the range of temperatures at which you may set your HVAC system, and you acknowledge and agree that none of the TrustHab Parties has any control over such settings and that none of the TrustHab Parties are liable to you in any way as a result of any event, circumstance, cause of action or legal claim arising out of any such changes.
5. INTELLECTUAL PROPERTY RIGHTS.
The TrustHab Products and all information, documents and materials available on or through the TrustHab Products are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively, the "Marks") of the TrustHab Parties are and shall remain TrustHab's exclusive property. Nothing in this EULA shall grant you the right or license to use any of the Marks. TrustHab has a non-revocable, worldwide license to use or incorporate feedback received into the TrustHab Products.
6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
You understand and agree that devices used to access the TrustHab Products or related alerts may rely on internet service providers or wireless networks, including, but not limited to, 4G LTE, CDMA and GSM ("Wireless Networks") and that actual internet or Wireless Network signal availability may depend on a combination of the third party Wireless Network carriers and the availability and actions of roaming partners, that that factors outside TrustHab's control, such as weather, buildings, topography, usage or maintenance activities of wireless network providers may limit or interrupt the TrustHab Products or alerts. TrustHab is not responsible for the interruption or limitation of the TrustHab Products related to issues with Wireless Networks or internet service providers.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE TRUSTHAB PRODUCTS IS AT YOUR SOLE RISK, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TRUSTHAB PRODUCTS ARE PROVIDED "AS-IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TRUSTHAB HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE TRUSTHAB PRODUCTS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT AND NON-INFEINGEMENT OF THIRD-PARTY RIGHTS. TRUSTHAB DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE TRUSTHAB PRODUCTS, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE TRUSTHAB PRODUCTS WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE TRUSTHAB PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE TRUSTHAB PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY TRUSTHAB PARTY, NOR AN AUTHORIZED REPRESENTATIVE THEREOF, SHALL CREATE ANY WARRANTY. IF YOUR TRUSTHAB PRODUCTS ARE DEFECTIVE, YOU UNDERSTAND AND AGREE THAT EITHER YOU OR YOUR LANDLORD OR PROPERTY OWNER (AS AGREED BETWEEN YOU AND YOUR LANDLORD OR PROPERTY OWNER) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, AND TRUSTHAB SHALL NOT BE RESPONSIBLE TO YOU FOR ANY SUCH SERVICING, REPAIR OR CORRECTION. YOU AGREE TO DEAL SOLELY WITH YOUR LANDLORD OR PROPERTY OWNER, AND NOT WITH TRUSTHAB, TO ENSURE THAT ANY SUCH DEFECTS ARE CORRECTED.
8. LEGAL COMPLIANCE.
You acknowledge and agree that you may not use, export or re-export the TrustHab Products except as authorized by United States federal law and the laws of the state in which the TrustHab Product was obtained or is used, installed, maintained or accessed. In particular, but without limitation, the TrustHab Products may not be exported or re-exported (i) into any U.S.-embargoed countries (such countries, "Sanctioned Countries") or (ii) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List (such persons or entities, "Sanctions Persons"). By using any TrustHab Product, you represent that you are not located in a Sanctioned Country and that you are not a Sanctioned Person. You also agree that you will not use any of the TrustHab Products for any purposes prohibited by United States federal or state law, including, without limitation, to develop, design, manufacture or produce nuclear, missile, chemical or biological weapons.
This EULA is effective until properly terminated by either TrustHab or you. Your rights under this EULA will terminate automatically without notice from TrustHab if you fail to comply with any term of this EULA or the Terms of Service. Upon termination of this EULA, you shall cease all use of the TrustHab Products and destroy all copies, full or partial, of the Platform Services. All representations, warranties, indemnifications and limitations of liability contained in this EULA shall survive termination of this EULA. In addition, any other obligations of you or TrustHab hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected or are expressed to survive termination of this EULA.
11. THIRD-PARTY TERMS.
You must comply with all applicable third-party terms of agreement when using the TrustHab Products.
You agree that (i) neither your rights nor your obligations under this EULA are assignable and (ii) we may freely assign our rights and obligations under this EULA in our sole discretion, without notice to you. This EULA shall bind and inure to the benefit of you and TrustHab and their successors and permitted assigns. Each of you and TrustHab acknowledge and confirm that you are acting as an independent contractor with respect to the activities covered by this EULA.
This EULA and any other documents incorporated by reference constitute the entire agreement and understanding between you and TrustHab with respect to the subject matter of this EULA, and they replace any and all prior written or verbal agreements between you and TrustHab. If any portion of this EULA is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of you and TrustHab, and the remainder of the provisions shall remain in full force and effect. If TrustHab fails to insist upon or enforce strict performance of any provision of this EULA, it shall not thereby waiver or be deemed to have waived any provision or right that it has under this EULA or applicable law. Neither course of conduct or dealing between you and TrustHab, nor TrustHab's trade practice, shall act to modify any provision of this EULA. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either you or TrustHab, regardless of which party drafted or was principally responsible for drafting this EULA or any specific term or condition hereof. 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.
13. DISPUTE RESOLUTION.
The terms of this Section 13 apply to all Claims that may arise out of, or be in any way connected or related to, this EULA or the TrustHab Products, except (i) if in TrustHab's opinion, you have acted in any manner, or failed to act in any manner such that, harm is or may occur to any TrustHab Party or any other third party, in which case TrustHab may seek immediate injunctive relief in any court of competent jurisdiction and (ii) that any Claim may, at the option of the claimant, be resolved in small claims court, subject to Section 13(a) below.
a. TrustHab Resolution. If you have or wish to bring any Claim against any TrustHab Party arising out of, or that is in any way connected or related to, the TrustHab Products, you agree that you will (x) request that your landlord or property owner contact TrustHab and provide TrustHab with a written description of the Claim and your contact information (including any username or password used to access the TrustHab Products) and (y) give TrustHab 30 days within which to resolve the Claim, beginning on the day on which TrustHab receives your written description. If TrustHab does not resolve your Claim within such 30-day period following good faith negotiations, then you may proceed to arbitrate your Claim in accordance with Section 13(c) below.
b. Class Action Waiver. YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT THAT YOU MAY HAVE TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING AGAINST ANY TRUSTHAB PARTY ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS EULA. ACCORDINGLY, YOU UNDERSTAND AND AGREE THAT THE ARBITRATOR IN ANY ARBITRATION MAY ONLY ARTBITRATE YOUR INDIVIDUAL CLAIM, AND THAT SUCH ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES THAT MAY BE SIMILARLY SITUATED.
c. Arbitration Agreement. Any Claims by us or you that are not resolved pursuant to the informal procedure set forth in Section 13(a) or in a small claims court as provided in Section 13 and that arise out of, relate to or are connected with this EULA or the TrustHab Products may only be asserted individually in binding arbitration administered by the American Arbitration Association (the "AAA") before a sole arbitrator in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate travel costs). This EULA and each of its parts evidences a transaction involving interstate commerce, and the Federal Arbitration Act (the "FAA") (9 U.S.C. § 1, et. seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. The arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed by you and TrustHab. Judgment on any award granted by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding any of the foregoing, the following provisions apply to any and all of your arbitration Claims: (1) the arbitrator will have the exclusive authority to resolve any Claim relating to this EULA, including the interpretation, applicability, enforceability or formation hereof and any Claim that any part of this EULA is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration, nor to join or consolidate Claims by or for individuals; (3) the arbitrator's decision with respect to such Claim shall be controlled by the terms and conditions of this EULA and any other agreements referenced herein; (4) the arbitrator shall apply Florida law consistent with the FAA and applicable statutes of limitations and shall honor any claims of privilege recognized at law; (5) to the extent permitted by applicable law, the arbitrator shall not have the power to award punitive, incidental or consequential damages against you or TrustHab; (6) in the event that the administrative fees and deposits that must be paid to initiate arbitration against TrustHab exceed $125 for claims less than $10,000, or $375 for claims greater than $10,000 but less than $75,000, and you are unable (or not required under the applicable Rules and Procedures) to pay any fees and deposits that exceed this amount, TrustHab agrees to pay them and/or forward them on your behalf, subject to ultimate allocation by the arbitrator. In addition, if you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, TrustHab will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (7) with the exception of subclause (3) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by the AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subclause (3) is found to be invalid, unenforceable or illegal, then this Section 13(c) and any other arbitration-related provisions in this Section 13(c) shall be null and void, and neither you nor TrustHab will be entitled to arbitrate any Claims.
14. MAINTENANCE AND SUPPORT.
Please contact your landlord or property owner for customer support. TrustHab is solely responsible for providing maintenance and support services for the TrustHab Products, but TrustHab will not undertake to do so unless agreed between TrustHab and your landlord or property owner. Third party operating system providers such as Apple and Google have no obligation to provide maintenance or support services for the TrustHab Products.