THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND WAIVER OF CLASS ACTION AND CLASS ARBITRATION. THIS IS A WAIVER OF YOUR RIGHT TO A JUDGE OR JURY TRIAL IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED.
This End User License Agreement (the “Agreement”) applies to the Ezlo Innovation, LLC (“Ezlo”) platform and the software and applications associated with certain hardware products provided by Ezlo. By using (i) the Ezlo platform (the “Platform”) and (2) any software that is embedded on any Ezlo hardware product (“Product”), downloaded from Ezlo, or any other Ezlo software or application (collectively, as may be updated from to time, the “Software”), you agree to the terms of this Agreement between you, Ezlo and Ezlo Shop. If you are entering into this Agreement on behalf of an organization, you represent and warrant that you have the authority to enter into this Agreement on behalf of the organization, and that the organization agrees to be bound by all of the terms of this Agreement. You also represent that you are of sufficient legal age in your jurisdiction or area of residence to use or access the Software and to enter into this Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR IF YOU DO
NOT HAVE THE LEGAL CAPACITY FOR YOURSELF OR AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, YOU MAY NOT USE THE PLATFORM, THE SOFTWARE OR THE PRODUCT(S).
Provided that you comply with all terms and conditions of this Agreement and pay all applicable fees, Ezlo grants you a terminable, non-exclusive, non-transferable, internal, limited license to use the applicable Software hereby licensed to you, in executable object code form only, solely for use on the applicable device that you own or control and solely for use in conjunction with the applicable Products. All rights of every kind that are not expressly granted to you in this Agreement are entirely and exclusively reserved to and by Ezlo. You may use this Software only as expressly provided in this Agreement. You may not rent, lease, loan, sublicense, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Product or Software, nor assist or permit anyone else to do so. You may not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
You understand that you are provided and/or otherwise receiving or able to access the Software as a part of your purchase of the applicable hardware Product, and that a portion of the purchase price for your hardware Product is attributed towards the Software (including all applicable licenses, updates and maintenance). The Software and associated documentation and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Ezlo and its licensors. Ezlo and its licensors reserve all rights in and to the Software not expressly granted to you in this Agreement.
The Software (including Software included with the applicable hardware Product) is licensed to you under this Agreement and is for use only under the terms of this Agreement, and not sold to you. There are no implied licenses in this Agreement. Certain items of independent, third-party code may be included in the Software that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this Agreement restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the applicable license.
If required by any license for particular Open Source Software, Ezlo makes such Open Source Software, and Ezlo’s modifications to that Open Source Software, available by written request to Ezlo at the email or mailing address listed below. Any feedback, comments, ideas or suggestions you provide with respect to the Products, Software or related Services are the property of Ezlo and may be used, published or incorporated into Ezlo Products without further need for permission from you.
Certain Services made available by Ezlo to users of its Products are provided through third-party vendors and subcontractors selected by Ezlo at its discretion. These Services include, without limitation, digital photography and video archiving services (“Video Archiving Services”) which are provided as standard features of most Ezlo home controller Products (and generally described below), along with other Services such as central monitoring services and central monitoring services with cellular backup service (as generally described on the Website). The standard Video Archiving Services allows users to archive automatically up to 1 GB of video footage, which is stored on servers maintained by third party providers who have contracted with Ezlo. When a user’s archived data reaches the 1 GB limit, Ezlo automatically deletes photos and videos on a first-in, first-out basis, unless a user has specifically
marked video footage or photographs as not to be deleted.
For security monitoring, any security monitoring service is purchased locally from the local dealer and not from Ezlo.
The dealer’s security monitoring service is provided by the local security monitoring services without warranty by Ezlo and subject to the following limitations of liability: EXCEPT WHERE EXPRESSLY LIMITED BY LAW, THE LIABILITY OF THE SECURITY MONITORING SERVICE PROVIDERS FOR ANY LOSS OR DAMAGE ARISING OUT OF ANY INTERRUPTIONS, MISTAKES, OMISSIONS, DELAYS, ERRORS, OR DEFECTS IN YOUR DEALER’S SERVICE OR TRANSMISSION OF YOUR DEALER’S SERVICE OR FOR LOSSES OR DAMAGES ARISING OUT OF THE FAILURE OF SECURITY MONITORING SERVICE PROVIDERS TO MAINTAIN PROPER STANDARDS OF MAINTENANCE AND OPERATIONS SHALL NOT EXCEED THE GREATER OF THE AMOUNT PAID BY THE END USER FOR YOUR DEALER’S SERVICE OR ONE HUNDRED U.S. DOLLARS ($100.00 USD).
THE SECURITY MONITORING SERVICE PROVIDERS SHALL NOT HAVE ANY LIABILITY FOR ANY MISTAKE, OMISSION, INTERRUPTION OR DEFECT THAT DOES NOT LAST FOR AT LEAST 24 HOURS FROM TIME OF INITIAL NOTICE. THE SECURITY MONITORING SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY MISTAKE, OMISSION, INTERRUPTION, OR DEFECT IN YOUR DEALER’S SERVICE CAUSED BY THE NEGLIGENCE OR WILLFUL ACT OF THE DEALER, END USER SUBSCRIBER, OR PARTIES OTHER THAN THE SECURITY MONITORING SERVICE PROVIDERS,
THERE IS NO LIABILITY TO SECURITY MONITORING SERVICE PROVIDERS FOR CAUSES OR ACTS BEYOND THE CONTROL OF THE SECURITY MONITORING SERVICE PROVIDERS INCLUDING BUT NOT LIMITED TO: FORCE MAJEURE EVENTS, ACTS OF GOD, FIRE, EXTREME WEATHER RELATED EVENTS, VIOLENCE OR WAR, RIOTS, GOVERNMENT AUTHORITIES, DEFAULT OF SUPPLIER(S), OR ANY OTHER CAUSES BEYOND
THE CONTROL OF THE SECURITY MONITORING SERVICE PROVIDERS, INCLUDING WITHOUT LIMITATION DEFECT IN OR FAILURE OF EQUIPMENT PROVIDED BY YOUR DEALER OR ANY PARTY OTHER THAN THE SECURITY MONITORING SERVICE PROVIDERS.
Ezlo may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software (“Updates”). You acknowledge that you may be required to install Updates to use the Software and you agree to promptly install any Updates provided by Ezlo. In addition, you acknowledge that Ezlo may update the Software without requiring any additional consent or action from you, and you consent to Ezlo so automatically updating the Software at any time. Upgrades may temporarily interfere with your Software and hardware Products, or temporarily or permanently change the features, functionality or use of the Software and hardware Products and you agree those will be done at our discretion. If you do not want such automatic Updates, your sole remedy is to stop using the applicable Internet services in conjunction with the Software and Product or stop
using the Software and Product altogether.
This Agreement and the license granted hereunder are effective on the date you first use the Platform and the Software or Product and shall continue for as long as you use the Platform or own the Product, unless this Agreement is terminated earlier as provided herein. Ezlo may terminate this Agreement at any time if you fail to comply with any term(s) hereof or fail to pay any fees when due to Ezlo. You may terminate this Agreement upon written notice to Ezlo. In the event of any termination of this Agreement or your rights hereunder, all provisions of this Agreement except your rights under the grant of license shall survive such termination and you agree to continue to be bound by these terms. Upon termination, you may no longer use the Software.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND UNLESS EXPRESSLY STATED OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EZLO OR AN EZLO AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTY PROVIDED BY EZLO, IF ANY. EZLO MAKES NO WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF
VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY BUT SUBJECT TO THE LAST SENTENCE OF THIS SECTION, (A) EZLO WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE SOFTWARE OR THIS AGREEMENT, EVEN IF EZLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EZLO’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SOFTWARE AND THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE EITHER (1) THE PORTION OF THE PAID FEES APPLICABLE TO THE PRODUCTS, SOFTWARE OR SERVICES RELATING TO SUCH CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY OR (2) REPLACEMENT OF DEFECTIVE MEDIA OR
PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED IN EZLO’S SOLE DISCRETION. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. EZLO DISCLAIMS ALL LIABILITY OF ANY KIND OF EZLO’S AND/OR EZLO’S SUPPLIERS, DISTRIBUTORS AND DEALERS. EZLO IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT, SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT AND/OR ANY SERVICES PROVIDED BY A THIRD PARTY INCLUDING ANY THIRD PARTY VENDOR OR SUBCONTRACTOR. YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND EZLO DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HVAC SYSTEM, PLUMBING, HOME, PRODUCT, LIGHTS, APPLIANCES, ENTERTAINMENT SYSTEMS, LOCKS, DETECTORS, ALARMS, AND ALL OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT
INFORMATION, SOFTWARE, OR PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO SOME OF THE EXCLUSIONS AND LIMITATIONS CONTAINED IN THIS AGREEMENT MAY NOT BE APPLICABLE.
You agree to comply with all export and import laws and restrictions and regulations of any applicable United States or foreign agency or authority, and not to export, re-export or import the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, you may not export or re-export any commodities, software, or technical data received from Ezlo, or any direct product of such commodities, software or technical data to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. government, or any applicable foreign governmental authority, unless properly authorized. As applicable, you and Ezlo Shop/Ezlo each shall obtain and bear all expenses and responsibility relating to any necessary agreements and/or exemptions with respect to its own export or re-export of the Software. The information regarding export laws set forth herein is not necessarily complete, and you should refer to the relevant governmental authority for more information.
The Software is commercial in nature, and is a “Commercial Item” as that term is defined in 48C.F.R.2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are defined in 48C.F.R. 252.227-7014(a)(5) and 48 C.F.R. 252.227-7014(a)(1), and used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, as applicable. Pursuant to 48 C.F.R.12.212, 48 C.F.R.252.227-7015, 48 C.F.R. 227.7202 through 227.7202-4, 48 C.F.R. 52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and all related publications, commercial computer software, and commercial computer software documentation are distributed and licensed to United States Government end users, if at all, with only those rights as granted to all other end users, according to the terms and conditions contained in this Agreement.
Customer security and privacy is our top priority. We understand the importance of your personal data, and we take steps to secure and protect it whenever it is stored in our infrastructure. The EU General Data Protection Regulation (GDPR) imposes additional requirements for companies that collect or store personal data of European Union residents. Additional data and privacy laws are applicable to different jurisdictions, including but not limited to: the United Kingdom GDPR, California Privacy Rights Act, California Consumer Protection Act, and Canada’s Consumer Privacy Protection Act.
Our policies regarding data ownership and protection are focused on providing you with confidence that your data remains secure, and under your control. We have established a number of measures to ensure that customers and their data are treated in a manner consistent with privacy principles and industry best practices.
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY TRIAL IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED.
You agree that any dispute, claim or controversy arising out of this agreement shall be determined by
binding arbitration. Before you may begin arbitration with respect to a dispute involving any aspect of
this Agreement, you shall notify Ezlo and any other party to the dispute for the purpose of seeking
dispute resolution. The notice to Ezlo should be addressed to Ezlo Innovation LLC, 200 Broadacres Drive,
Second Floor, Bloomfield, New Jersey 07003, USA.
If the dispute is not resolved within sixty (60) days after the initial notice, then a party may proceed in
accordance with the following: The laws of New Jersey, USA govern the interpretation, construction, and
enforcement of this agreement and all proceedings arising out of it, including tort claims, without regard
to any conflicts of law principles. Any controversy or claim arising out of or relating to this contract, or
the breach thereof, shall be settled by arbitration administered by the International Chamber of
Commerce in accordance with its Arbitration Rules if one of the parties is outside the United States or by
the American Arbitration Association if both parties are located inside the United States. Venue shall be
in Bloomfield, NJ, USA and judgment on the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The proceeding shall be conducted in English. Either party may appear
before the panel by telephone or video conference.
YOU AND EZLO AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR EZLO WILL SEEK TO HAVE ANY DISPUTE HEARD AS A FEDERAL OR STATE CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATION OR PROCEEDINGS.
court or other tribunal (including, without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT, AND RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS AGREEMENT. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. (f) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties’ original intent, and the remaining portions remain in full force and effect, or Ezlo may at their option instead terminate this Agreement. (g) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (h) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (i) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein (and any such assignment or other transfer shall be null and void). Ezlo may assign this Agreement to any entity or entities at their sole discretion. (j) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (k) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.