BUILDING ROBOTICS END USER LICENSE AGREEMENT

Last updated: March 6, 2013

 

Thank you for your interest in this software application for your mobile device (the “App”) provided to you by Building Robotics, Inc. (“Building Robotics”), which enables you to use certain features of Building Robotics’ service known as “Comfy”, which provides commercial building occupants with personalized, adaptive control over their thermal environment (the “Service”) from your mobile device. This End User License Agreement (the “EULA”), together with the Terms of Use located at http://buildingrobotics.com/comfy/termsofuse/ into which this EULA is incorporated by reference (collectively the “Terms”), as may updated from time to time, govern your use of the App and the Service features made available through the App. Defined terms used, but not defined in this EULA, have the meanings given to them elsewhere in the Terms or associated policies. You may request a copy of this EULA by emailing us at [email protected].

BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS EULA AND BY USING THE APP TO ACCESS OR USE THE SERVICE YOU FURTHER AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS.  IF YOU DO NOT AGREE, YOU MAY NOT USE THE APP OR THE SERVICE.

You acknowledge and agree that, as provided in greater detail in this EULA, Terms and Privacy Policy:

  • the App is licensed, not sold to you, and that you may use App only as set forth herein;
  • the use of the App may be subject to separate third party terms of service and fees, such as the terms of service fees charged by your mobile network operator (the “Carrier”).  Compliance and payment are your sole responsibility;
  • you consent to the collection, use, and disclosure policies set forth in Building Robotics’ Privacy Policy, including with respect to the collection, use and disclosure of location information to personnel employed by the building(s) with which your account is associated and your employer;
  • the App is provided “as is” no warranties, and Building Robotics’ liability to you is limited;
  • disputes between us will be resolved by binding arbitration as set forth in the Terms, and by accepting this EULA, as provided in greater detail in Section 10 of this EULA, we each waive certain rights to trial by jury or to participate in a class action;
  • the App requires access to the following services on your mobile device:  push notifications and location; and
  • if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.

1. Limited License.

Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA and the Terms (including without limitation payment of any applicable fees and compliance with all license restrictions), Building Robotics grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (defined in Section 6) to use one copy of the App downloaded directly from Building Robotics or from a legitimate marketplace (such as Apple’s iTunes store or Google Play), solely in object code format and solely for your own use for lawful purposes, on a single compatible mobile device that you own or control, and (2) permission to access and use the Service, only for your own use, through the use of a licensed copy of the App. You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service.  Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or (b) interfere with, disable, or circumvent, or attempt to disable or circumvent, any feature of the App, including without limitation any security, access control mechanism, or other technological measure designed to protect the App or any content available through the App. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed and intended.  The term App, as used herein, includes any update or modification to the App made available to you by Building Robotics in its sole discretion (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights.

2. Third Party Accounts, Terms and Fees.

In order to download the App, you may be required by third parties who are providing services in connection with the App, such as Apple, Inc. (each, a “Service Provider”) to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Service Provider. Your access and use of any account with a Service Provider, including in connection with the Service, is subject to any terms, conditions, and policies, including privacy policies, of that Service Provider. Building Robotics is not responsible for any act or omission of any Service Provider.  You are solely responsible for your use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable third party fees. Without limiting the generality of the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.

3. Consent to Use and Disclosure Of Data.

You consent to the collection, use, and disclosure policies set forth in Building Robotics’ Privacy Policy, including without limitation the collection, use and disclosure of location information to personnel employed by the building(s) with which your account is associated and your employer. Please see Building Robotics’ Privacy Policy, located at http://buildingrobotics.com/comfy/privacy/ for more information regarding how Building Robotics collects, uses and discloses your information.

4. Reservation of Rights.

No license or rights are granted to you with respect to the App or Service, whether by implication, estoppel, or otherwise, except for the limited rights expressly set forth in the Terms.

5. Feedback.

If you provide Building Robotics with any comments, bug reports, feedback, or modifications proposed or suggested by you for the Service or App (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any accompanying communication), and Building Robotics shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Service or App.  You hereby grant Building Robotics a perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose without compensation to you.

6. Term and Termination.

This EULA will remain in effect until terminated, or until the Terms terminate for any reason (the “Term”).  This EULA will terminate immediately upon your breach of this EULA. You may terminate this EULA by uninstalling and ceasing all use of the App, and you must do so (and return any delivery media, if any, to Building Robotics) immediately upon any termination. Building Robotics may terminate this EULA at any time for any reason, including without limitation any actual or suspected misuse or abuse by you of the App or the Service. The licenses and rights granted to you by Building Robotics under this EULA shall terminate immediately upon the termination of this EULA. Sections 2-12 shall survive any termination of this EULA.

7. Disclaimers; No Warranties.

THE SERVICE AND APP ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. BUILDING ROBOTICS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, SUBSIDIARIES AND AGENTS (“THE BUILDING ROBOTICS ENTITIES”) SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND THE APP, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE BUILDING ROBOTICS ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR THE APP, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR THE APP WILL CREATE ANY WARRANTY REGARDING ANY OF THE Building Robotics ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS AND THE APP. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN THE APP THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THE APP. 
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

8. Limitation of Liability.

IN NO EVENT WILL THE BUILDING ROBOTICS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR THE APP, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE BUILDING ROBOTICS ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE BUILDING ROBOTICS ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE, THE APP OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO BUILDING ROBOTICS FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9. Third Party Software.

The Service may include open source software or third party software. Any such software is made available to you under the terms of the applicable licenses.  Please review the information on this page for the applicable notices and license terms.

10. Dispute Resolution.

  • A. In the interest of resolving disputes between you and Building Robotics in the most expedient and cost effective manner, you and Building Robotics agree that any and all disputes arising in connection with this EULA shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Building Robotics are each waiving the right to a trial by jury or to participate in a class action.
  • B. Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
  • C. Arbitrator. Any arbitration between you and Building Robotics will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Building Robotics.
  • D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Building Robotics’ address for Notice is: Building Robotics, Inc., 360 17th Street #204, Oakland, CA 94105. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or Building Robotics may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Building Robotics shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.  In the event our dispute is finally resolved through arbitration in your favor, Building Robotics shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Building Robotics in settlement of the dispute prior to the arbitrator’s award, or (iii) $1,000.00.
  • E. Fees. In the event that you commence arbitration in accordance with these Terms, Building Robotics will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Alameda County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Building Robotics for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
  • F. No Class Actions. YOU AND BUILDING ROBOTICS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Building Robotics agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
  • G. Modifications. In the event that Building Robotics makes any future change to this arbitration provision (other than a change to the Building Robotics’ address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Building Robotics’ address for Notice, in which case your account with Building Robotics shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
  • H. Enforceability. If only Subsection f of this Section 10 or the entirety of this Section 10 is found to be unenforceable, then the entirety of this Section 10 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 11 shall govern any action arising out of or related to these Terms.

11. Miscellaneous.

This EULA (including the Terms and any associated policies) is the entire agreement between you and Building Robotics, and supersedes any and all prior agreements, negotiations, or other communications between you and Building Robotics, whether oral or written, with respect to the App, and cannot be modified except as expressly provided herein.  These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Building Robotics agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

12. Notice Regarding Apple.

If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple.  This EULA is between you and Building Robotics only, not with Apple, and Apple is not responsible for the Service and the content thereof.  Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.  In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.  Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights.  You agree to comply with any applicable third party terms, when using the Service.  Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA.  You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.