Ecobee SMART User Manual - page 18
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12. Limitation: IN NO EVENT AND TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW SHALL ECOBEE, ITS SHARE-
HOLDERS, AFFILIATES,CONTRACTORS, SUPPLIERS AND AGENTS
AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES
(COLLECTIVELY THE “ECOBEE PARTIES”) 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
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a jurisdiction other than Canada, the parties agree that neither the
United Nations Convention of the International Sale of Goods or
the (U.S.) Uniform Computer Information Transactions Act shall
apply to this EULA. The parties irrevocably attorn to the non-exclu-
sive 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 unen-
forceable 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.