Ecobee SMART THERMOSTAT User Manual - page 20
BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY
INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES (INCLUDING WITH RESPECT TO
LOSS OF, OR DAMAGE TO, DATA OR COMPUTER SYSTEMS
OR RELIANCE ON ANY DATA DERIVED FROM LICENSEE’S
USE OF THE SOFTWARE, OR LOSS OF REVENUE OR PROFIT
OR OTHER ECONOMIC LOSS) OF ANY KIND OR NATURE
WHATSOEVER SUFFERED BY LICENSEE OR ANY THIRD PARTY
HOWSOEVER CAUSED AND WHETHER RESULTING FROM THE
USE OF OR INABILITY TO USE THE SOFTWARE OR OTHERWISE
(INCLUDING AS A RESULT OF OR DUE TO USE OF OR
RELIANCE ON THE SOFTWARE AND/OR ecobee WEB PORTAL)
AND REGARDLESS OF THE FORM OR CAUSE OF ACTION,
EVEN IF SUCH DAMAGES ARE FORESEEABLE OR ecobee HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ECOBEE PARTIES’ TOTAL LIABILITY AND OBLIGATION TO
LICENSEE, IN THE AGGREGATE FOR ANY AND ALL CLAIMS
ARISING OUT OF OR IN ANY CONNECTION WITH THIS EULA,
THE TERMS OF SALE IN CONNECTION WITH YOUR PURCHASE
OF THE PRODUCT AND YOUR USE OF THE SOFTWARE AND
PRODUCT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS,
INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE
FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR
BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR
OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT
DAMAGES SUFFERED AND SHALL NOT EXCEED AN AMOUNT
THAT IS EQUIVALENT TO THE PURCHASE PRICE OF THE
ecobee PRODUCT ACTUALLY PAID BY LICENSEE. THIS
SECTION SHALL SURVIVE A FUNDAMENTAL BREACH OR
BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF
THE AGREEMENT.
13. Survival: The parties acknowledge and agree that the
provisions of Sections 2, 6, 7, 9, 11(b), 12, 13, 14, 15, 16 and
17 shall survive any termination of this EULA for any reason.
14. English Language: The parties declare that they have required
that this agreement and all documents related hereto,
either present or future, be drawn up in the English
language only. Les parties déclarent par les présentes qu’elles
exigent que cette entente et tous les documents y afférents,
soit pour le présent ou le futur, soient rédigés en langue
anglaise seulement.
15. Jurisdiction: This EULA shall be exclusively governed by,
construed and interpreted in accordance with the laws
of the Province of Ontario, Canada. For the purpose of all
legal proceedings this EULA shall be deemed to have been
performed in the Province of Ontario, Canada and the parties
expressly confirm that the law of the Province of Ontario is
the proper law. If Customer is located in a jurisdiction other
than Canada, the parties agree that neither the United
Nations Convention of the International Sale of Goods or the
33 End User Software License Agreement
(U.S.) Uniform Computer Information Transactions Act shall
apply to this EULA. The parties irrevocably attorn to the non-
exclusive jurisdiction of the Courts of the Province of Ontario in
respect of all matters and disputes arising hereunder.
16. Export Law Assurances: LICENSEE acknowledges that the
Software may be subject to export and import control laws,
and agrees to comply fully with those laws in connection with
the Software.
17. General Provisions: No delay or omission by ecobee to
exercise any right or power it has under this EULA or to
object to the failure of any covenant of LICENSEE to be
performed in a timely and complete manner, shall impair
any such right or power or be construed as a waiver of any
succeeding breach or any other covenant. Any waivers by
ecobee must be in writing and signed by an authorized
representative of ecobee. If any provision of this EULA is
held by a court of competent jurisdiction to be invalid or
unenforceable in any respect, then the remaining provisions
of this EULA, or the application of such provisions to
persons or circumstances other than those as to which it
is invalid or unenforceable shall not be affected thereby,
and each such provision of this EULA shall be valid and
enforceable to the extent granted by law. The EULA
constitutes the entire agreement between the parties as
it relates to the license and use of the Software and User
Manual and the subject matter of this EULA and supersedes
all prior or contemporaneous agreements, negotiations,
representations and proposals, written or oral between
ecobee and LICENSEE. The EULA may only be amended or
supplemented by written agreement executed by each of
the parties.
End User Software License Agreement
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