Swidget End-User License Agreement
Swidget Corp. (“Swidget”, “us” or “we”) thanks you for choosing one of our Swidget products (the “Product”). This End-User License Agreement (this “Agreement”) is a legal document that contains the terms and conditions under which use of certain Software (as defined below) that operates with the Product is licensed to you.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THIS PRODUCT.
BY INSTALLING THE SOFTWARE, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. ALSO, BY USING OR COPYING THE SOFTWARE, YOU ARE AGREEING TO ALL THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT CHECK THE BOX OR CLICK THE BUTTON AND/OR DO NOT USE, COPY OR INSTALL THE SOFTWARE, AND UNINSTALL THE SOFTWARE FROM ALL DEVICES THAT YOU OWN OR CONTROL. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND YOU PURCHASED A PRODUCT CONTAINING THE SOFTWARE FROM AN AUTHORIZED RETAILER, RESELLER OR APP STORE (AS DEFINED BELOW), YOU MAY BE ELIGIBLE TO RETURN THE PRODUCT FOR A REFUND, SUBJECT TO THE TERMS AND CONDITIONS OF THE APPLICABLE RETURN POLICY.
This Software licensed to you by Swidget. “Software” means any and all firmware programs and associated files provided with respect to the Product; any and all software programs, applications or “apps” and associated files provided with respect to the Product; all modified versions of and upgrades or improvements to such programs (such as those provided via web-based updates), all subsequent versions of such programs, and all copies of such programs and files. Software does not include any Open Source Software.
By “you,” we mean the purchaser, recipient or other end user of the Product containing the Software or the purchaser, recipient or other end user of the Software on a standalone basis. “You” may also mean a person who has downloaded the Software from an authorized website, such as www.Swidget.com or from an authorized application market or store, such as Apple’s App Store or Google Play (each such application market or store is referred to in this Agreement as an “App Store” and collectively as “App Stores”).
1.LICENSE GRANT. Swidget hereby grants you the right to use for your personal, non-commercial purposes, copies of the Software in object code form on devices that you own (or, in the case of firmware, one copy of the firmware in object code form solely on the Product relating to the firmware). As part of this license, you may (A) operate the Software in the manner described in the user documentation for the Software; (B) where the Software is provided for download onto a personal computer or mobile device, make as many copies of the Software as you reasonably need for your own use (this does not include firmware); and (C) permanently transfer all of your rights to use the Product (including but not limited to the Software) to another person, so long as that person also agrees to be bound by this Agreement, and following such transfer you stop using the Product and the Software, and permanently delete any copies you might have made.
2. LICENSE RESTRICTIONS.The Software is licensed, not sold, to you. You only have the non-exclusive right to use the Software in accordance with this Agreement. You may not (i) modify, adapt or otherwise create derivative works from the Software, the Product containing the Software or user documentation (except as may be permitted by an applicable open source license) without receiving prior written consent from Swidget to make any such modifications: (ii) lease, sublicense, resell, rent, loan, redistribute, or otherwise transfer (except as expressly permitted above), whether for commercial purposes or otherwise, the Software or user documentation; (iii) reverse engineer, disassemble, decrypt or decompile the Product or the Software or otherwise try to reduce the Software to a human-readable form, except where and only to the extent that such activity is permitted by applicable law or where Swidget is required to permit such activity under the terms of an applicable open source license; (iv) remove or alter any copyright, trademark or other proprietary notices contained in the Software or user documentation; (v) use the Product, Software or user documentation to develop a competing hardware and/or software product, or otherwise in any manner not set forth in this Agreement or the user documentation; (vi) if the Software is firmware, copy the firmware (other than one backup copy for archival purposes only), use it on a multi-user system or operate it separately from the Product onto which it is embedded; (vii) use the Software to transmit software viruses or other harmful computer code, files or programs, or to circumvent, disable or otherwise interfere with security-related features of the Software; (viii) use the Software to collect or harvest any third party’s personally identifiable information, to send unauthorized commercial communications or to invade the privacy rights of any third party; or (ix) use the Software for any unlawful purpose, and/or in any manner that breaches this Agreement. All rights not expressly granted to you by Swidget under this Agreement are hereby reserved by Swidget. You will not acquire such rights, whether through estoppel, implication, or otherwise.
4. UPGRADES AND UPDATES. While Swidget is not required to do so, Swidget may provide you with upgrades or updates to this Software. This Agreement will govern any upgrades provided by Swidget that replace and/or supplement the original firmware and/or Software, unless such upgrade is accompanied by a separate end user license agreement, in which case the terms of that end user license agreement will govern. If you decide not to download and use an upgrade or update provided by Swidget, you understand that you could put the Software at risk to serious security threats or cause the Software to become unusable or unstable. In very limited cases, updates may still be automatically applied, regardless of the auto-update setting. For example, we may provide an automatic update that fixes a security breach or vulnerability to your network. We may also provide you with updated Software data files automatically to benefit you, such as to provide you with updated device information to identify new devices in your network. These data files do not update your firmware, but consist of Software files that are cached on your Product and override older files. By agreeing to this Agreement, you agree to automatic updates.
6. INTELLECTUAL PROPERTY RIGHTS.All title and intellectual property rights (including without limitation all copyrights, patents, trade secret rights and trademark rights) in and to the Software (including but not limited to any content incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Swidget or its suppliers. Therefore, you must treat the Software like any other material protected by laws and treaties relating to international property rights and in accordance with this Agreement.
8. INDEMNITY. If Swidget is the subject of a claim, becomes involved in a legal proceeding, or suffers any economic loss or damage as a result of your violation of this Agreement, to the extent permitted by law, you will be responsible for compensating Swidget for the full amount of its loss, as well as any reasonable amounts Swidget incurs in legal fees, expenses and court costs, except to the extent that Swidget contributed to the loss or damage.
9. TERM. This Agreement is effective when you install the Swidget App, or when you in any other way use, copy or install the Software, which will constitute your acceptance of, and agreement to, this Agreement. Once accepted, this Agreement remains in effect until terminated. The limited license in this Agreement will be automatically terminated if you fail to comply with any of the terms and conditions in this Agreement. You agree that upon such termination, you will immediately destroy all programs and documentation that relate to the Software, including all copies made or obtained by you, and otherwise cease use of the Software. If the Software has been installed on a personal computer or mobile device, you must uninstall the Software immediately. If the Software is software or firmware embedded on a Product, you must stop using the Product. All provisions of this Agreement except for Section 1 and the limited warranty in Section 12 (the first paragraph) will survive termination.
10. IMPORTANT NOTICE REGARDING YOUR CONSUMER RIGHTS.SOME COUNTRIES, STATES AND/OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CONDITIONS, WARRANTIES OR GUARANTEES, AND/OR DO NOT ALLOW PRODUCTS OR SERVICES TO BE SOLD WITH NO WARRANTIES OR GUARANTEES. ACCORDINGLY, IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE SECTIONS BELOW ENTITLED “LIMITED WARRANTY AND DISCLAIMER” AND “GENERAL EXCLUSIONS AND LIMITATION OF LIABILITY” MAY NOT APPLY TO YOU. ONLY THOSE EXCLUSIONS AND LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND, IN SUCH INSTANCES, SWIDGET’S LIABILITY WILL BE LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE ENFORCEABILITY OF THESE LIMITED WARRANTIES MAY VARY BASED ON THE LOCAL LAWS APPLICABLE TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS DEPENDING ON WHERE YOU LIVE.
THIS AGREEMENT IS NOT INTENDED TO AND DOES NOT: (I) CHANGE OR EXCLUDE ANY STATUTORY CONSUMER RIGHTS THAT CANNOT BE LAWFULLY CHANGED OR EXCLUDED; OR (II) LIMIT OR EXCLUDE ANY RIGHT YOU HAVE AGAINST THE PERSON WHO SOLD THE PRODUCT TO YOU IF THAT PERSON HAS BREACHED ANY SALES CONTRACT WITH YOU. YOU AGREE TO USE THE SOFTWARE IN COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING LOCAL LAWS OF THE COUNTRY OR REGION IN WHICH YOU LIVE OR IN WHICH YOU DOWNLOAD OR USE THE SOFTWARE.
11. LIMITATION OF LIABILITY. THE SOFTWARE AND ANY RELATED PROGRAMS AND DOCUMENTATION IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. IN THOSE JURISDICTIONS WHERE IT CAN LAWFULLY DO SO, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SWIDGET, ITS RESELLERS AND ITS SUPPLIERS HEREBY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCEPTABLE OR SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, LOSS OF OR DAMAGE TO DATA, LACK OF VIRUSES OR FREE FROM VIRUS OR MALWARE ATTACK, SECURITY, PERFORMANCE, NEGLIGENCE, WORKMANLIKE EFFORT, QUIET ENJOYMENT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT YOUR USE OF OR THE PERFORMANCE OF THE SOFTWARE AND RELATED INFORMATION, PROGRAMS AND DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT YOUR USE OF THE SOFTWARE AND RELATED INFORMATION, PROGRAMS AND DOCUMENTATION WILL GENERATE ACCURATE, RELIABLE, TIMELY RESULTS, INFORMATION, MATERIAL OR DATA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SWIDGET, A DEALER, AGENT OR AFFILIATE SHALL CREATE A WARRANTY.
YOUR USE OF THE SOFTWARE, PRODUCT AND RELATED PROGRAMS AND DOCUMENTATION IS AT YOUR OWN RISK AND DISCRETION. YOU ARE SOLELY RESPONSIBLE FOR (AND SWIDGET DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HOME, HVAC SYSTEM, ELECTRICAL SYSTEM, PLUMBING, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR MISUSE OF THE SOFTWARE, PRODUCT AND RELATED PROGRAMS AND DOCUMENTATION. YOU ARE RESPONSIBLE FOR COMPLYING WITH ANY SAFETY WARNINGS AND PRECAUTIONS THAT ACCOMPANY THE PRODUCT. IF YOU ARE NOT COMFORTABLE WITH USING THE PRODUCT AFTER READING THE SAFETY WARNINGS, YOU MUST RETURN THE PRODUCT TO YOUR PLACE OF PURCHASE AND STOP USING THE SOFTWARE. SWIDGET IS NOT RESPONSIBLE FOR (I) YOUR FAILURE TO FOLLOW SAFETY WARNINGS, PRECAUTIONS OR ANY OTHER INSTRUCTIONS PROVIDED WITH THE PRODUCT AND/OR SOFTWARE, (II) YOUR NEGLIGENCE IN USE OF THE PRODUCT AND/OR SOFTWARE, OR (III) YOUR INTENTIONAL MISUSE OF THE PRODUCT OR SOFTWARE.
YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE AND ANY RELATED PROGRAMS AND DOCUMENTATION ARE NOT CERTIFIED FOR EMERGENCY RESPONSE OR INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE FAILURE, DELAY OR ERRORS OR INACCURACIES IN THE DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. YOU UNDERSTAND THAT THE PRODUCTS AND SOFTWARE ARE NOT PART OF AND DO NOT CONTAIN A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. SWIDGET DOES NOT MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO YOUR HOME IN THE EVENT OF AN EMERGENCY. SWIDGET CUSTOMER SUPPORT CONTACTS CANNOT BE CONSIDERED A LIFESAVING SOLUTION AND THEY ARE NOT A SUBSTITUTE FOR EMERGENCY SERVICES. ALL LIFE THREATENING AND EMERGENCY SITUATIONS SHOULD BE DIRECTED TO THE APPROPRIATE EMERGENCY RESPONSE SERVICES IN YOUR AREA.
It is your responsibility to back up your system, including without limitation, any material, information or data that you may use or possess in connection with the Product or Software, and Swidget shall have no liability for your failure to back up your system or any material, information or data.
Some Swidget Products and Software may monitor energy consumption in the home. Swidget does not guarantee or promise any specific level of energy savings or other monetary benefit from the use of the Products or Software or any other feature. Actual energy savings and any associated monetary benefits vary based on factors beyond Swidget’s control or knowledge. From time to time, Swidget may use the Software to provide you with information that is unique to you and your energy usage and suggests an opportunity to save money on energy bills if you adopt suggestions or features of the Product or Software. You acknowledge that this information is not a guarantee of actual savings, and you agree not to seek monetary or other remedies from Swidget if your savings differs. All information provided to you by Swidget is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing information through the Software is not a substitute for direct access of the information in the home.
12. GENERAL EXCLUSIONS AND LIMITATION OF LIABILITY:SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SWIDGET, ITS AFFILIATES, ASSOCIATES, DEALERS, AGENTS OR SUPPLIERS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS AND ASSIGNS BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR REVENUE, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR LOSS OF ABILITY TO USE ANY THIRD PARTY PRODUCTS OR SERVICES, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), REGARDLESS OF THE THEORY OF LIABLITY (CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SWIDGET OR SUCH OTHER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF SWIDGET, ITS AFFILIATES, ASSOCIATES, DEALERS, AGENTS OR SUPPLIERS TO YOU FOR ALL DAMAGES EXCEED THE LESSER OF FIFTY DOLLARS ($50.00) OR THE PRICE YOU PAID FOR THE PRODUCT, OR THE SOFTWARE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY WARRANTY OR REMEDY PROVIDED FAILS OF ITS ESSENTIAL PURPOSE. NOTHING IN THIS SECTION IS INTENDED TO LIMIT THE LIABILITY, UNDER APPLICABLE LAW, OF SWIDGET IN RELATION TO DEATH OR BODILY INJURIES.
The warranties and remedies set out in this Agreement are exclusive, and, to the extent permitted by law, in lieu of all others oral or written, express or implied.
14. GOVERNING LAW.The Parties to this Agreement submit to the jurisdiction of the courts of the Province of Ontario, Canada for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the Province of Ontario. However, if you are a consumer and you live in a country where Swidget markets or distributes the Software, local law may require that certain consumer protection laws of your country of residence apply to some sections of this Agreement. In addition, Swidget may seek injunctive relief in any court having jurisdiction to protect its intellectual property rights. Each of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods is hereby expressly excluded and will not apply to this Agreement.
SWIDGET and many product names and logos are trademarks of the Swidget Corp. Third-party trademarks mentioned are the property of their respective owners.
15. NOTICES.All notices to Swidget under this Agreement are to be provided at the following address: Swidget, Corp. 677 Innovation Dr. Suite #6, Kingston, ON, Canada, K7K 7E7, Attention; Legal Office.