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Service Agreement & License
THIS SERVICE AGREEMENT AND LICENSE (“Agreement”) IS A LEGAL AGREEMENT BETWEEN YOU (“You”) AND LUCIS TECHNOLOGIES INC. (“Lucis”). THE AGREEMENT COVERS THE TERMS AND CONDITIONS UNDER WHICH YOU USE THE NUBRYTE™ SERVICE (the “Service,” as more precisely defined below) MADE AVAILABLE THROUGH LUCIS’S NUBRYTE WEBSITE (the “Site”), AS WELL AS THE SOFTWARE AND FIRMWARE EMBEDDED IN THE NUBRYTE™ DEVICE (“Device”) AND THE MOBILE DEVICE APPLICATION THAT CONTROLS THE DEVICE (collectively, the “Software,” as more precisely defined below). THE WORD “YOU” REFERS COLLECTIVELY TO YOU, THE INDIVIDUAL AGREEING TO THIS AGREEMENT, AND ALL USERS OF YOUR DEVICE AND ACCOUNT TO USE THE SERVICE. THE INDIVIDUAL AGREEING TO THIS AGREEMENT IS RESPONSIBLE FOR THE CONDUCT OF ALL USERS OF YOUR DEVICE AND ACCOUNT.
CAREFULLY READ ALL OF THE AGREEMENT’S TERMS AND CONDITIONS BEFORE ENROLLING AS A REGISTERED USER OF THE SERVICE AND/OR USING THE SOFTWARE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO USE THE SERVICE OR THE SOFTWARE, AND ANY ACCESS TO THE SERVICE BY YOU SHALL CONSTITUTE UNAUTHORIZED ACCESS. BY CHECKING THE BOX NEXT TO “I Accept” WHEN REGISTERING FOR THE SERVICE AND/OR USING THE SOFTWARE, YOU ARE DEEMED TO HAVE AGREED TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS AS ENFORCEABLE TO THE SAME EXTENT AS ANY WRITTEN AGREEMENT ON PAPER SIGNED BY YOU.
1. Dispute Resolution
ANY DISPUTE, CLAIM, OR CONTROVERSY (collectively, “Claims”) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, OR VALIDITY OF THE AGREEMENT; THE SITE, THE SOFTWARE, AND/OR THE SERVICE SHALL BE DETERMINED BY BINDING ARBITRATION BEFORE ONE ARBITRATOR, WHICH SHALL BE THE SOLE AND EXCLUSIVE FORUM FOR ADJUDICATING ANY SUCH CLAIMS. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The place of arbitration shall be San Jose, California U.S.A. The language of the arbitration shall be English. Nothing in this Agreement shall preclude the parties from seeking provisional remedies in aid of arbitration from a court. Nothing in this Agreement shall be construed to preclude Lucis from seeking injunctive relief, damages, or other relief based on an infringement of Lucis’s Intellectual Property Rights. The parties irrevocably consent to the jurisdiction of the federal and state courts located in San Jose, California for the purpose of resolving any action at law or in equity not determined by arbitration arising out of or relating to this Agreement, or brought by Lucis arising out of or relating to such Intellectual Property Rights. To the maximum extent permitted by applicable law, no arbitration or claim under this Agreement by a User (defined below) shall be joined with any other arbitration or claim, including that of another User, and no class arbitration proceedings shall occur, and You waive any rights to class arbitration. You must bring any claim, action, or proceeding against Lucis no later than two (2) years after the claim or cause of action arose.
“Account” means an account to use the Service, which is controlled by a User via the Online Application or a Mobile Application.
“Device” means a NuBryte device.
“Intellectual Property Rights” means all forms of intellectual property protection in all jurisdictions throughout the world, now known or hereafter established, including, without limitation, all right, title, and interest in U.S. and foreign patents or other industrial right, patent applications and any right to apply for patents, including, without limitation any continuations, divisionals, and priority applications; trade secret and nondisclosure rights; copyrights, right to renew and any associated droit moral; and trademarks, service marks, trade names, product names, and brand names and all goodwill associated therewith.
“Mobile Application” means the NuBryte Android or iOS application provided by Lucis, which permits Users to access the Online Application, manage their NuBryte Devices, and manage their User Data, together with any upgrades, error corrections, modifications, or enhancements developed by Lucis and made generally available to Users.
“Online Application” means the NuBryte server-based online application delivered via the Site or a Mobile Application, as upgraded, corrected, modified, or enhanced from time to time and made generally available to Users, which permits Users to enrol for the Service, manage their NuBryte devices, and manage their User Data.
“Service” means Lucis’s Internet service to support the functionality of Users’ NuBryte Devices, which includes hosting and operating the Online Application and the functionality and infrastructure to support the Online Application and Mobile Application.
“Site” means Lucis’s website, which permits Users to access and use the Online Application.
3. Grant of Rights to Use the Service.
During the term of this Agreement and subject to Your compliance with its terms, You have a non-exclusive, non-transferable right to use the Service and manage Your Account via the Online Application or a Mobile Application.
4. Software License.
During the term of this Agreement and subject to Your compliance with its terms, Lucis grants You the following non-exclusive license (a) to use the Software, including any Mobile Application you are using, for Your own family, personal, and non-commercial purposes in connection with the operation of Your Device, (b) to make backup copies of the Software strictly for backup purposes in support of your use of the Software under subsection (a). This license is non-transferable except when you transfer a NuBryte device to another, in which case you may transfer your rights to use the software or firmware on the NuBryte device, as long as you make and retain no copies of that software or firmware.
5. Restrictions on Software License.
You must not use or copy the Software for purposes other than those permitted in Section 4. You must not sell, rent, lease, sublicense, or, except as permitted in Section 4, transfer the Software.
6. The Service.
During the term of this Agreement, Lucis will host and operate the Service.
7. Subscriber Obligations.
Your Account. You will provide complete, accurate, and truthful information to Lucis when applying for an Account. You must update Your Account with any changes in Account information in order to ensure that Lucis has accurate, current, and complete Account information about you.
Security of the Service. You must maintain the password protecting Your Account in confidence, You must maintain the security of Your password, and You must not share access to Your Account with anyone outside your family or household. You must also inform Lucis immediately by email sent to email@example.com, if you have reason to believe that the security of Your password or Account has been compromised.
Upon Expiration or Termination. After this Agreement expires or terminates, You must discontinue use of Your Account, the Service, and the Software, and after that, You must not attempt to access or use the Site, Service, or Software or attempt to register an Account.
8. Additional User Obligations.
You must not engage in conduct on the Site or with the Software or Service constituting a breach of, or threat to, the security of the Site, Service, or the Software, including but not limited to:
Obtaining unauthorized access to portions of the Site or Service beyond those intended for public access or Your own Account, and
Uploading, injecting, or placing on any portion of the Site, Service, or Software any electronic files or information containing code designed to damage or disrupt a system, such as a virus, worm, or Trojan Horse.
9. Changes in the Application and Service.
Lucis shall be entitled to add, discontinue, or change portions or functionality of the Software or Service, without liability to You or any third party, including by operation of systems to make automatic upgrades, corrections, modifications, or enhancements to the Software. You consent to the transmission and receipt of these changes to the Software.
Although Lucis seeks to maximize the availability of the Site and Service, You acknowledge that the Site and Service may be unavailable if Lucis or its service providers are maintaining or upgrading the Site or Service, or if other Site or Service outages occur. Lucis cannot guarantee that the Site or Service will be available 100% of the time. Lucis will provide reasonable support for the Site, Service, and Software by Site content to answer questions, email, and phone but has no obligation to provide any other support.
11. Intellectual Property Rights.
The Software, Service, and Site are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software, Service, and Site belong solely and exclusively to Lucis and its licensors, which own all right, title, and interest in and to the Application, the Service, the Site, and any Intellectual Property Rights associated therewith.
13. Limited Warranty.
Lucis provides a limited warranty covering the NuBryte Device, which is included with the Device when sold. Lucis warrants to Users that the Service and Software conform, in all material respects, to its published specifications and information about the Service and Software on the Site.
14. DISCLAIMER OF WARRANTIES.
EXCEPT AS WARRANTED IN SECTION 13, THE SERVICE, THE SOFTWARE, AND THE SITE, RELATED DOCUMENTATION, AND ANY AND ALL OTHER MATERIAL PROVIDED BY LUCIS TO USERS UNDER THIS AGREEMENT (COLLECTIVELY, “LUCIS MATERIALS”) ARE PROVIDED TO USERS “AS IS” WITHOUT WARRANTY OF ANY KIND. USE OF THE NUBRYTE DEVICE, SOFTWARE, SITE, AND SERVICE ARE AT YOUR OWN RISK. LUCIS HEREBY DISCLAIMES ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE LUCIS MATERIALS, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. LUCIS DOES NOT WARRANT THAT THE SERVICE AND SITE WILL FUNCTION AND REMAIN AVAILABLE WITHOUT INTERRUPTION OR THAT THE SERVICE, SOFTWARE, AND SITE ARE ERROR-FREE.
15. YOU UNDERSTAND AND AGREE THAT LUCIS HAS NO LIABILITY BECAUSE OF THE FOLLOWING FACTS, AND YOU WAIVE ALL SUCH LIABILITY:
THE FUNCTIONALITY OF THE NUBRYTE DEVICE AND SOFTWARE DEPEND ON THE USER PROVIDING A WORKING HOME NETWORK, ELECTRIC POWER, AND INTERNET ACCESS. IT WILL NOT FUNCTION PROPERLY WITHOUT THE AVAILABILITY OF ALL OF THESE SERVICES.
NUBRYTE DOES NOT GUARANTEE COMPATIBILITY WITH ALL OPERATING SYSTEMS, DEVICES, NETWORKS, APPLICATION SOFTWARE, AND ALL VERSIONS OF THEM. THE USE OF THE DEVICE, SITE, AND SOFTWARE, AND AUTOMATIC UPGRADES OF THE SOFTWARE, MAY REQUIRE UPGRADES TO COMPUTER OR MOBILE DEVICE OPERATING SYSTEMS, NET WORKS, AND APPLICATION SOFTWARE.
THE SECURITY FEATURES OF THE NUBRYTE DEVICE AND THE ASSOCIATED SOFTWARE DO NOT PREVENT HOME INTRUSTIONS AND ARE NOT A MONITORED SECURITY SYSTEM. IF YOU EXPERIENCE A HOME INTRUSION OR OTHER EMERGENCY, PLEASE DIAL 911 OR OTHER APPROPRIATE NUMBER TO REACH A FIRST RESPONDER.
THE NUBRYTE DEVICE’S CAMERA AND MOTION SENSORS HAVE A LIMITED RANGE AND REQUIRE THE PRESENCE OF LIGHT. THESE FEATURES MAY NOT DETECT A PERSON IF THE AREA IS DARK, IF A PERSON IS OUT OF THE LINE OF SIGHT, OR IF THE DEVICE IS BLOCKED, COVERED UP, OR REMOVED.
THE NUBRYTE DEVICE COMMUNICATES SECURITY ALERTS ONLY TO YOU. IF YOUR MOBILE DEVICE, ELECTRIC POWER, OR HOME NETWORK IS OFF OR IS OTHERWISE UN AVAILABLE, YOU WILL NOT RECEIVE SECURITY ALERTS.
USE OF THE NUBRYTE DEVICE AND SERVICE IS NOT A SUBSTITUTE FOR HOMEOWNER’S OR RENTER’S INSURANCE. YOU ARE RESPONSIBLE FOR HAVING APPROPRIATE INSURANCE WITH SUFFICIENT LIMITS OF LIABILITY TO PROTECT YOUR HOUSEHOLD.
NUBRYTE’S LEARNINGLIGHTSTM AND SMART LIGHTING FEATURES DO NOT GUARANTEE ANY CERTAIN LEVEL OF ENERGY SAVINGS AND THE TIMING OF ITS TURNING OFF LIGHTS IMMEDIATELY WHEN THEY ARE NO LONGER BEING USED MAY NOT BE COMPLETELY ACCURATE.
THE FUNCTIONALITY OF NUBRYTE FAMILY CALENDAR FEATURE DEPENDS ON THE DEGREE TO WHICH USERS INPUT AND MAINTAIN ACCURATE, CURRENT, AND COMPLETE SCHEDULING INFORMATION. IT MAY NOT SYNC WITH EXTERNAL CALENDARING APPLICATIONS OR SYSTEMS.
NUBRYTE’S ENERGY MONITORING FUNCTION PROVIDES ESTIMATES OF DATA AND ENERGY SAVINGS, AND LUCIS DOES NOT GUARANTEE THE AVAILABILITY, ACCURACY, OR TIME LINES OF ENERGY USAGE OR SAVINGS DATA.
LUCIS MAKES NO GUARANTEE OF THE AVAILABILITY, ACCURACY, OR TIMELINES OF WEATHER INFORMATION USED IN NUBRYTE’S WEATHER UPDATES FEATURE. DO NOT RELY ON NUBRYTE’S WEATHER FEATURE AS YOUR SOLE SOURCE OF INFORMATION RE GARDING POSSIBLE HAZARDOUS WEATHER CONDITIONS. LUCIS SHALL NOT BE LIABLE FOR ANY BODILY INJURY OR PROPERTY DAMAGE CAUSED DIRECTLY OR INDIRECTLY BY WEATHER CONDITIONS OR RELATED EFFECTS, INCLUDING WITHOUT LIMITATION FLOODS, MUDSLIDES, OR GROUND SUBSIDENCE, REGARDLESS OF WHETHER LUCIS’S WEATHER UPDATE FEATURE INFORMED YOU OF SUCH WEATHER CONDITIONS.
NUBRYTE’S FUNCTIONALITY DEPENDS ON FOLLOWING ALL DIRECTIONS FOR THE PROPER INSTALLATION OF THE DEVICE. IF YOU DO NOT INSTALL THE DEVICE PROPERLY, IT MAY NOT WORK OR PERFORM ALL OF NUBRYTE’S FUNCTIONS.
16. LIMITATIONS OF LIABILITY.
UNDER NO CIRCUMSTANCES WHATSOEVER SHALL LUCIS OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, DAMAGE TO YOUR HOME, PERSONAL PROPERTY, DATA, SOFTWARE, OR NETWORKS, OR ANY LOST PROFITS, LOST DATA, OR LOST SAVINGS, OR THE COST OF PROCURING SUBSTITUTE SERVICES, EVEN IF LUCIS OR ONE OF ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL LUCIS’S LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR RELATING TO, IN WHOLE OR IN PART, THIS AGREEMENT, THE LUCIS MATERIAL, OR THE NUBRYTE DEVICE, WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, EXCEED THE TOTAL AMOUNT YOU HAVE PAID LUCIS $250.
SECTIONS 14 AND 16 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT PERMIT EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR LIMITATIONS ON CONSEQUENTIAL OR INCIDENTAL DAMAGES AND THEREFORE SOME OF THE TERMS IN SECTIONS 14 AND 16 MAY NOT APPLY TO YOU.
You agree to indemnify, hold harmless, and defend Lucis and any parent, subsidiary, or affiliate of Lucis, as well as any of their respective officers, directors, members, employees, and agents (each of whom is referred to as an “Indemnified Party”) against all claims, demands, suits, losses, damages, liability costs, actions, judgments, fines, penalties, and expenses (including reasonable attorney’s fees) arising from or in connection with:
Your breach of any warranty or provision in this Agreement;
Any violation of law by You;
Any and all claims by third parties against one or more Indemnified Party based on allegations arising out of Your use of the Site, Service, or Software or Your acts or omissions during Your use of the Site, Service, or Software.
19. Term of this Agreement
This term of this Agreement will continue while you have an active Account to use the Service, while you are using a Device, and while you are using the Software.
20. Termination of this Agreement.
You may terminate this Agreement for convenience at any time by using Your Account to notify Lucis that You wish to cancel the Service and Your Account.
Termination of Subscribers’ Accounts. Lucis is entitled to terminate an Account at any time, for any or no reason, with our without prior notice or explanation, and without liability. Without limiting the generality of the foregoing, Lucis is entitled to terminate this Agreement and Your Account if You violate any term of this Agreement, if You breach any warranty in this Agreement, or if any information You provide Lucis is false.
The provisions of Sections 1, 5, 7(c), 8, 11, 14, 15, 16, 17, 18, 20(c), 21, and 23 shall survive the expiration or termination of this Agreement.
All notices and communications required or permitted under this Agreement shall be in writing and sent to the following address:
Lucis Technologies Inc.
Attention: Customer Service Department
1159 Sonora Court, Suite 320
Sunnyvale, CA 94086
22. Changes to this Agreement.
Lucis may, from time to time, make changes to this Agreement by posting a new Agreement to the Site. Your continued use of the Site, Service, or Software after posting of the new Agreement constitutes Your acceptance of the changes to the Agreement. If You do not agree to changes to the Agreement, You must cancel Your Account under Section 20(a) and discontinue use of the Site, the Service, and the Software.
This Agreement shall be governed by the internal laws of the State of California, USA without giving effect to its conflicts of laws principles. This Agreement constitutes the entire agreement and understanding between the parties and supersedes all prior agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement. Except as set forth in Section 22, no amendment, modification, or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by You and an authorized representative of Lucis. The unenforceability of any provision or provisions of this Agreement shall not render unenforceable or impair its remainder. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties. The headings in this Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement. Lucis may assign this Agreement any assignee or successor in interest. You may not assign this Agreement or delegate the duties under this Agreement without advance written consent of Lucis. This Agreement will be binding upon, and inure to the benefit of Lucis, and its successors and assigns, and You and Your heirs, representatives, and your permitted successors and assigns.