IMPORTANT-READ CAREFULLY: BY USING THE SOFTWARE OR THE SERVICES, YOU AS THE "CUSTOMER" AGREE TO ALL THE TERMS OF THIS TERMS OF SERVICE AND LICENSE AGREEMENT (THE "AGREEMENT") WITH CLOUDBEAM ("CLOUDBEAM") REGARDING CUSTOMER'S USE OF THE SOFTWARE AND SERVICES. IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT INSTALL, DOWNLOAD AND USE, COPY OR OTHERWISE USE THE SOFTWARE OR THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE IN ADDITION TO ANY TERMS AND CONDITIONS IMPOSED BY THERMOSTAT MANUFACTURERS OR OTHER SERVICE OPERATORS FROM WHICH CUSTOMER RECEIVES THE SOFTWARE.
1.1 "Service" means cloudbeam smart energy services that are designed to permit Customer to (i) remotely control certain home energy consuming devices (such as thermostats, HVAC and water heaters) and (ii) manage and monitor energy usage on such devices, all utilizing Customer’s personal computer or wireless device.
1.2 "Software" means the object code version of the cloudbeam software application that is required to be installed on Customer's personal computer or wireless device to use the Service.
2.1 Grant to Service and Software. Subject to the terms and conditions of this Agreement, cloudbeam hereby grants to Customer a non-exclusive, non-transferable license (without the right to sublicense) to: (i) install the Software on Customer’s personal computer or wireless device (if applicable); (ii) use the Software solely as necessary to use the Service; and (ii) use the Service for Customer’s personal subject to any limitations associated with Customer's account during the term of this Agreement.
2.2 Restrictions. Except as explicitly set forth in this Agreement, Customer shall not, and shall not permit any third party to: (i) permit other persons or entities to use the Service or the Software; (ii) reproduce the Service or the Software; (iii) modify, translate, adapt or create derivative works from the Service or the Software; (iv) reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or attempt to extract source code from the Software; (v) lend, lease, distribute or otherwise transfer the Service or the Software; or (vi) remove or alter any proprietary notices or labels on the Service or the Software.
3. Acceptance. The Software shall be deemed accepted upon Customer's installation of the same (if applicable) and the Service shall be deemed accepted upon Customer's first use of the same.
4. Customer Warranty. Customer represents and warrants that (i) Customer will use the Service and Software in a responsible manner in compliance with all applicable laws and regulations, including without limitation, all data privacy and intellectual property laws, and (ii) Customer is at least eighteen (18) years of age and can form a legally binding contract. Customer agrees to indemnify cloudbeam for any breach of the foregoing representations and warranties and for any claim made against cloudbeam arising out of Customer’s use of the Service or the Software.
5. Warranty Disclaimer. CUSTOMER AGREES THAT CLOUDBEAM AND ITS LICENSORS AND SUPPLIERS PROVIDE THE SERVICE AND THE SOFTWARE ON AN "AS IS" BASIS. NEITHER CLOUDBEAM NOR ITS LICENSORS OR SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE SERVICE OR THE SOFTWARE AND/OR ANY INFORMATION OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CLOUDBEAM ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES WILL ONLY FUNCTION IF THE CLOUDBEAM SOFTWARE HAS BEEN INSTALLED ON CUSTOMER’S HOME CLOUDBEAM CONSUMING DEVICE, WIRELESS DEVICE AND/OR PERSONAL COMPUTER, WHETHER BY CLOUDBEAM, CUSTOMER OR OTHER SERVICE OPERATOR FROM WHICH CUSTOMER RECEIVES THE SOFTWARE. CLOUDBEAM DOES NOT REPRESENT OR WARRANT THAT CUSTOMER'S DATA IS SECURE OR WILL BE FREE FROM LOSS OR CORRUPTION.
6. Ownership. All right, title and interest in and to the Service and the Software (including all fixes and updates thereto) shall at all times remain exclusively vested in cloudbeam and/or its licensors, including without limitation all copyrights, patents and the right to apply for patents, trade secrets, moral rights and other intellectual and industrial property rights, and Customer hereby assigns to cloudbeam any interest it may have in the same. Subject to the licenses granted under this Agreement, cloudbeam expressly reserves all right, title and interest in and to all compilations, selections, arrangements, portions, extracts, adaptations, and derivatives of the Service and the Software (including all fixes and updates thereto).
7. Consequential Damages/Limitation of Liability. EACH PARTY AGREES THAT IN NO EVENT SHALL CLOUDBEAM OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND RELATING TO THIS AGREEMENT, THE SERVICE, THE SOFTWARE AND/OR ANY INFORMATION OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST DATA, PROPERTY DAMAGE OR INABILITY TO USE THE SOFTWARE, AND/OR ANY INFORMATION OR SERVICES, EVEN IF CLOUDBEAM OR CLOUDBEAM' LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ADDITIONALLY, IN NO EVENT SHALL CLOUDBEAM' AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE LIMITATIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
8. Term/Termination. This Agreement shall commence on the date the Customer installs the Software and/or registers to use the Service (the "Effective Date") and shall continue for any applicable period for which Customer has paid for a Service subscription, unless otherwise terminated pursuant to this Section 8 ("Term/Termination"). This Agreement will terminate automatically and without notice to Customer upon Customer’s material breach of any term or condition of this Agreement. Cloudbeam reserves the right to discontinue the Service at any time with ninety (90) days notice to Customer, provided that cloudbeam will refund the unused portion of any subscription fees paid by Customer applicable to the remaining portion of the then-current Service subscription. If the Service is provided on a no-charge basis to Customer, cloudbeam may terminate this Agreement and Customer's access to the Service if Customer's account remains inactive for a period of ninety (90) days or more and Customer does not use Customer's account after cloudbeam has provided notice by email of such inactivity. Promptly upon termination or expiration of this Agreement, Customer will: (i) cease use of the Service and the Software; and (ii) destroy all copies of the Software, and certify such destruction in writing to cloudbeam. The foregoing requirement applies to all copies in any form, partial or complete, including copies in storage media and regardless if any copy is merged into other materials. Sections 4 ("Customer Warranty"), 5 ("Warranty Disclaimer"), 6 ("Ownership"), 7 ("Consequential Damages/Limitation of Liability"), 8 ("Term/Termination"), and 10 ("General") shall survive any termination of this Agreement. ON EXPIRATION OR TERMINATION OF THIS AGREEMENT, ANY DATA CUSTOMER HAS STORED ON THE SERVICE MAY NOT BE RETRIEVED, AND CLOUDBEAM SHALL HAVE NO OBLIGATION TO MAINTAIN ANY DATA STORED IN CUSTOMER'S ACCOUNT OR TO FORWARD ANY DATA TO CUSTOMER OR TO ANY THIRD PARTY. Customer agrees that cloudbeam may retain (but shall have no obligation to retain) Customer's data for a period after Customer's account has been terminated, expired, or otherwise lapsed, as part of cloudbeam marketing to Customer of the opportunity to purchase, renew, or extend Customer's account.
9. Fees. If applicable, Customer expressly agrees that cloudbeam (or if applicable, a thermostat manufacturer or other service operator) is permitted to bill Customer the fees, any applicable tax and any other charges Customer may incur in connection with Customer's use of the Service and/or Software in accordance with the payment page at [URL]. cloudbeam reserves the right to change the fees at any time which will be reflect on the payment page and will be effective thirty (30) days after notice of the change. Customer must provide cloudbeam (or, if applicable, the thermostat manufacturer or service operator) with a valid credit card. If timely payment is not received or cannot be charged to Customer's credit card for any reason, cloudbeam reserves the right to either suspend or terminate Customer's access to the Services and/or the Software. By using the Service, Customer consents to receiving electronic communications from cloudbeam. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services. These electronic communications are part of Customer's relationship with cloudbeam and Customer receives them as part of Customer's agreement with cloudbeam. Customer agrees that any notices, agreements, disclosures or other communications that cloudbeam sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. CLOUDBEAM MAY, IN ITS SOLE DISCRETION AND FROM TIME TO TIME, ESTABLISH OR AMEND GENERAL OPERATING PRACTICES TO MAXIMIZE THE OPERATION AND AVAILABILITY OF SERVICE AND TO PREVENT ABUSES. IN THE EVENT CUSTOMER IS DEEMED TO HAVE VIOLATED THIS POLICY, CLOUDBEAM RESERVES THE RIGHT TO OFFER AN ALTERNATIVE PRICING PLAN OR SERVICE THAT WILL PERMIT CUSTOMER TO CONTINUE TO USE THE SERVICE. ALTHOUGH VIOLATIONS OF THIS POLICY HAVE BEEN INFREQUENT, WE RESERVE THE RIGHT TO TERMINATE OR SUSPEND CUSTOMER'S RIGHT TO USE THE SERVICE, WITHOUT PRIOR NOTICE IN THE EVENT OF A VIOLATION OF THIS POLICY.
10. General. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law provisions. Customer and cloudbeam agree to submit to the exclusive jurisdiction of the federal and state courts of the State of California. This Agreement shall be governed in all respects by the laws of the State of California, without regard to its conflict of law rules. The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to this Agreement and the parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. No waiver, amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall be deemed as a waiver of any such right, power or remedy. Either party may assign this Agreement to an entity acquiring substantially all of its assets or merging with it, provided that such assignee agrees in writing to assume all obligations under this Agreement and a copy of such writing is provided to the other party hereunder. Except as set forth above, neither party may assign any of its rights or delegate any of its obligations under this Agreement to any party without the express written consent of the other party. Any attempted assignment in violation of the foregoing shall be void and of no effect. Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Customer acknowledges that the Software contains trade secrets, the disclosure of which would cause substantial harm to cloudbeam that could not be remedied by the payment of damages alone. Accordingly, cloudbeam will be entitled to preliminary and permanent injunctive relief and other equitable relief against Customer for any breach of the terms of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect. Customer shall not export the Software in violation of any export control laws. Any notice, consent or other communication hereunder shall be in writing, and shall be given personally, by certified mail or by express delivery to either party at their respective addresses, for Customer the address set forth in the registration or download form and for cloudbeam as set forth on cloudbeam' website or such other address as may be designated by written notice of either party. Notices shall be deemed given when delivered or transmitted, or seven (7) days after deposit in the mail. The parties' relationship shall be solely that of independent contractor and nothing contained in this Agreement shall be construed to make either party an agent, partner, joint venturer or representative of the other for any purpose. This Agreement constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals, negotiations, agreements and all other communications between the parties with respect to the subject matter hereof.