1. Introduction and Scope
Control4 Corporation ("Control4") sells hardware products (the "Hardware") and software, either embedded in the Hardware or distributed separately (the "Software" and together with the Hardware, the "Control4 System"). Control4 also owns and operates the websites located at www.control4.com, customer.control4.com and other related Control4 web pages (the "Website"), and provides access to certain internet and software application services related to the use and operation of Control4 Systems (the "Services").
For the avoidance of doubt, the Control4 End User License Agreement between you and Control4 (the "EULA") sets forth the terms and conditions that apply to your use of any Software, and the Control4 Limited Warranty provided with your Hardware (the "Warranty") sets forth the terms of the limited warranty that applies to the Hardware. A copy of the Warranty is available at www.control4.com/legal/warranty, and a copy of the EULA is available at www.control4.com/legal/eula.
Control4 may, in its sole discretion and without prior notice to you, add, delete or otherwise change the provisions of these Terms by posting on the Website a version of these Terms containing such changes. You should periodically check the Website for the most current version of these Terms. If you are dissatisfied with any such changes to these Terms, your sole recourse will be to cease use of the Website and the Services or any portion thereof, in accordance with Section 10 below.
The features and functions of the Services are described in more detail in the applicable Control4 user documentation and guidelines available elsewhere on the Website. The Services include any additional features and functionality that Control4 may, in its sole discretion and from time to time, offer to you. Control4 may, in its sole discretion and without notice to you, add, delete or otherwise change features and functions of the Services at any time. If you are dissatisfied with any such changes to the Services, you may immediately cancel your use of such Services as provided in Section 10 below.
3. Eligibility and Registration
You may subscribe to the Services only if you have the legal capacity to form a binding contract with Control4. In particular, if you are under eighteen (18) years of age, you may not register to use the Services, and must have someone in your household who is at least eighteen (18) years of age register to use the Services. You may not use the Services if Control4 has previously prohibited you from use of the Website and/or the Services.
4. License Rights and Use Restrictions
(a) Access and Use. Subject to the terms and conditions of this Agreement, any applicable limitations on the number of devices and payment of any applicable fees, Control4 grants you a non-transferable, non-exclusive, right (without the right to sublicense) to access and use the Services as provided to you by Control4 and solely for the purpose of controlling and monitoring your Control4 System (the "Permitted Purpose").
(b) Certain Restrictions. Your use of the Services is subject to the following restrictions: you agree (i) not to license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services; (ii) not to modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services; (iii) not to access the Services in order to build a similar or competitive service, (iv) not to use the Services for any unlawful purpose, or for any purpose other than the Permitted Purpose; (v) that no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; (vi) not to upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Website, the Services, the Hardware, the Software, or any other system, device or property; (vii) not to interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the Website or the Services, or violate the regulations, policies, or procedures of such networks; (viii) not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Control4; and (ix) not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) which may be contained in or displayed in connection with the Website or the Services.
(c) IN ADDITION, IN NO EVENT DOES CONTROL4 AUTHORIZE YOU OR ANYONE ELSE TO USE THE SERVICES WHERE THE FAILURE OF THE SERVICES TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN SIGNIFICANT PHYSICAL INJURY, OR IN LOSS OR PROPERTY, OR IN LOSS OF LIFE. ANY SUCH USE IS ENTIRELY AT YOUR OWN RISK, AND YOU AGREE TO INDEMNIFY AND HOLD CONTROL4 HARMLESS FROM ANY AND ALL CLAIMS OR LOSSES RELATING TO SUCH UNAUTHORIZED USE.
(d) Modification. Control4 reserves the right, at any time, to modify, suspend, or discontinue the Services or any part thereof, with or without notice. You agree that Control4 will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
5. Third-Party Content
The Services may give you the ability to access content, such as music or video services, television or other material, controlled or provided by third parties ("Third-Party Content"). You understand and acknowledge that: (a) Third-Party Content remains the property of the applicable third parties, who have the sole right to determine your rights to use such content; (b) Control4 is not responsible for, and has no editorial control over, any Third-Party Content, and Control4 does not sponsor or endorse any such content; and (c) Control4 has no control over the distribution of Third-Party Content. You agree that Control4 will have no liability to you or to any third parties, including without limitation to anyone else who uses your Control4 System, related to or arising out of to any Third-Party Content. You also agree that neither the Services will not be used to illegally copy, display or otherwise make use of Third-Party Content without authorization from the appropriate rights holder or in violation of applicable law. Unauthorized copying or distribution of copyrighted or trademarks may constitute an infringement of the copyright or trademark holders' intellectual property rights. In addition, steps intended to defeat or bypass security measures designed to prevent infringement of the intellectual property rights of others may be illegal under U.S. law or comparable foreign laws. Control4 reserves the right to terminate your right to access and use the Services and delete your account if Control4 believes in good faith that you have used the Services or your Control4 System to infringe upon the intellectual property rights of others.
6. Subscription Fees and Payment; Taxes
(a) Subscription Fees. Access to the Services is provided on a subscription basis and requires the payment of a subscription fee ("Subscription Fee"). You agree to pay any applicable Subscription Fee charged by Control4 in advance. Initial subscriptions are for a period of one (1) year following the activation of your account. If for any reason you need to reactivate a subscription, you may be charged a reactivation fee. If you register for the Services under a promotional Subscription Fee, some additional restrictions and limitations may apply.
(b) Payment. Access to your account will not be permitted until Control4 has verified that the credit card information is accurate and that your credit card account is in good standing. If you choose a subscription option with recurring payments, you agree that Control4 may automatically charge the subscription fee to your credit or charge card at the beginning of each billing period. Control4 reserves the right to suspend or terminate your access to the Services without notifying you upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to Control4 for the Services. Such rights are in addition to and not in lieu of any other legal right or remedies available to Control4. Control4 reserves the right to refer your account to a third party for collection in the event of an ongoing default, and you agree to reimburse Control4 for any costs incurred by Control4 in the collection of amounts that are past due, including for any reasonable attorneys' fees and court costs.
(c) Changes in Subscription Fees. Control4 may, in its sole discretion, change fees from time to time and charge additional fees for any features and functionalities that are not a part of the initial Services covered by a Subscription Fee. Control4 will use commercially reasonable efforts to notify you (by email or such other method reasonably selected by Control4) thirty (30) days in advance of any fee changes or new fees.
(d) Taxes. The amounts payable by you to Control4 hereunder are exclusive of any applicable sales, use, value added, excise or similar taxes that may apply to the transactions contemplated hereunder. Any such taxes shall be your responsibility and you agree to pay to Control4 any such taxes that Control4 is required to collect under applicable law.
7. Internet Service Provider Charges
Access to and use of the Services requires the use of, and you are responsible for, an always-on broadband Internet connection. Control4 is not responsible for and does not make any assurances about the availability or functionality of any broadband Internet connection. Network protection for your Internet connection is strongly advised to protect your Control4 System against viruses and other types of harm. You are responsible for any service charges for your Internet connection incurred as a result of using or accessing the Website and/or the Services and acknowledge and agree that you shall be solely responsible for all disputes with any Internet service provider related to the same.
8. Certain of Your Representations and Warranties to Control4
You represent and warrant to Control4 that: (a) you are at least eighteen (18) years of age and are competent, and have the authority, to enter into this Agreement; (b) you have provided or will provide Control4 with User Information that is correct and complete; (c) you will not use the Services in violation of any applicable laws, regulations, or ordinances or for any illegal or unauthorized activities; (d) you take full responsibility for the actions of anyone to whom you disclose your password or login ID or whom you otherwise allow to access your account; and (e) you will never circumvent, compromise, nor attempt to circumvent or compromise any Control4 security measures in connection with the Services.
9. Dealers Are Independent Contractors, Not Agents of Control4
You are required to purchase your Control4 System from an authorized Control4 dealer or distributor ("Dealer") in your area of your choice. While such Dealers receive training regarding Control4 Systems, Dealers are independent contractors and service providers, and not employees or agents of Control4. Accordingly, (i) Control4 makes no representations or warranties with respect to Dealers or their services and is in no way responsible for their acts or omissions, and (ii) Dealers have no right to bind Control4 legally or otherwise make commitments on behalf of Control4. You are solely responsible to select a competent Dealer that meets your expectations. Such Dealer may offer additional installation, configuration or ongoing maintenance services. Any disputes, which may arise between you and your Dealer, are to be resolved between you and your Dealer.
10. Term and Termination
These Terms will remain in full force and effect so long as you continue to use or access the Website and/or the Services, or until terminated in accordance with the provisions of this section. You may terminate your account and your right to use the Services for any reason, at any time. Your access to the Services and your account will be terminated upon your written or emailed request and any unused Subscription Fees that you have paid are nonrefundable. At any time Control4 may suspend or terminate your rights to use the Services, if Control4 in good faith believes that you have used the Services in violation of this Agreement. If you transfer or assign your Control4 System or any portion thereof to a new owner, your right to use the Services with respect to such products automatically terminates, and the new owner will have no right to use the Services under your account (as described below), and will be required to register for a separate account with Control4. In addition, Control4 reserves the right to terminate your Services account and this Agreement for any reason or no reason, if Control4 gives you at least thirty (30) days advance notice of such termination. Upon any such termination of your account by Control4, you will remain obligated to pay all outstanding fees and charges relating to your use of the Services prior to termination, but Control4 will return any unused Subscription Fees that you have paid if Your account is terminated for any reason other than Your breach of this Agreement.
You acknowledge that all right title and interest in and to the Services, including all intellectual property rights therein and thereto, remain the exclusive property of Control4 and its licensors, and this Agreement grants to you no right or interest therein other than the limited rights expressly set forth herein, and Control4 and its licensors and suppliers reserve all rights not granted in this Agreement.
12. Your Indemnification of Control4
You agree to defend, indemnify and hold harmless Control4, and its officers, directors, employees, consultants, agents, and other representatives, from and against any and all suits, claims, actions, proceedings, damages, demands, injuries, liabilities, losses, costs and expenses (including reasonable attorneys' fees), arising from or related to: (a) your negligence or willful misconduct; (b) your use of the Services; (c) your breach of any of your representations, warranties, obligations, or covenants in this Agreement; and (d) your use of Third-Party Content.
13. Warranty Disclaimers
(a) THE WEBSITE AND THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, AND CONTROL4 AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM, TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CONTROL4 AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE WEBSITE OR THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CONTROL4, ANY DEALER OR THROUGH THE WEBSITE OR THE SERVICES SHALL CREATE ANY WARRANTY WITH RESPECT TO THE WEBSITE OR THE SERVICES. FURTHER, CONTROL4 DOES NOT WARRANT THAT THE WEBSITE OR THE SERVICES OR THE CONTROL4 SERVERS THAT PROVIDE YOU WITH DATA AND CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK WITH RESPECT TO YOUR USE OF THE SERVICES. FURTHERMORE, CONTROL4 MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROFESSIONAL SERVICES PERFORMED BY ANY CONTROL4 DEALERS.
14. LIMITATION OF LIABILITY
IN NO EVENT WILL CONTROL4 OR ANY OF ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATED TO CONTROL4'S PERFORMANCE OR FAILURE TO PERFORM IN ACCORDANCE WITH THIS AGREEMENT, OR YOUR USE OF THE WEBSITE AND/OR THE SERVICES, OR THE OPERATION OR USE OF THE SERVICES OR YOUR CONTROL4 SYSTEM THROUGH YOUR ACCOUNT BY ANYONE ELSE, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM LOSS OF DATA, PROGRAMMING OR THIRD PARTY CONTENT, LOSS OF REVENUE OR PROFITS, OR FOR BUSINESS INTERRUPTION; (B) FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST YOU BY ANY THIRD PERSON; (C) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY CONTROL4 TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND CONTROL4'S REASONABLE CONTROL; OR (D) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST CONTROL4 MORE THAN ONE YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CONTROL4'S AND ITS SUPPLIERS' TOTAL, CUMULATIVE LIABILITY ARISING FROM OR RELATED TO YOUR USE OF THE WEBSITE AND/OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO CONTROL4 OR CONTROL4'S AUTHORIZED RESELLER FOR THE SERVICES GIVING RISE TO LIABILITY IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 14 APPLY WHETHER A CLAIM IS ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO AGREE THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES, FORM A MATERIAL PART OF THIS AGREEMENT, AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY LIMITED REMEDY PROVIDED TO YOU FAILS IN ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
16. Governing Law and Jurisdiction; Waiver of Jury Trial
This Agreement and any claims arising hereunder will be governed by the laws of the State of Utah, excluding principles of conflict or choice of law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. To the extent permitted by applicable law, you and Control4 hereby irrevocably submit to the jurisdiction of any Utah state court or United States federal court, in either case sitting in Utah over any suit, action or other proceeding brought by you, a third party, or Control4 arising out of or relating to these Terms, and you and Control4 hereby irrevocably agree that all claims with respect to any such suit, action or other proceeding shall be heard and determined in such courts. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED AMONG THEM. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court or other tribunal (including, without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT, AND RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
This Agreement represents the entire agreement between you and Control4 with respect to your use, and Control4's provision, of the Website and the Services, and its terms supersede and replace any prior or contemporaneous written or oral statements by Control4 or its representatives, dealers, or resellers. If any provision of this Agreement is held by a court to be invalid or unenforceable under applicable law, such provision will be deemed modified to the extent necessary to render such provision valid and enforceable, and the other provisions of this Agreement will remain in full force and effect. The official text of this Agreement or notice submitted hereunder shall be in English. In the event of any dispute concerning the construction or meaning of this Agreement, reference shall be made only to this Agreement as written in English and not to any translation into another language, and this Agreement will not be construed against the drafting party. You may not amend this Agreement except in a writing signed by Control4. You may not assign, sublicense or transfer any of your rights and obligations under this Agreement to a third party without Control4's prior written consent. Any attempted assignment, sublicense, or transfer without the prior written consent of Control4 shall be null and void. Control4's failure to enforce any of the terms of the terms and conditions of this Agreement shall not constitute a waiver or relinquishment of Control4's right to do so at any time. Sections 4(b), 6, 10, and 12 - 17 shall survive any termination or expiration of this Agreement.
Copyright ©, Control4 Corporation. All rights reserved. All trademarks, logos, trade names and service marks ("Marks") displayed on the Website or the Services are the property of Control4 or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Control4 or such respective holders. Control4 reserves the right to alter product and services offerings, specifications, and pricing at any time without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.
Last updated: March 15, 2013
End User License Agreement
2. License Grant
Provided that you comply with all terms and conditions of this EULA and pay all applicable fees, Control4 grants you a non-exclusive, non-transferable, internal, limited license to use the applicable Software hereby licensed to you, in executable object code form only, solely for use on the applicable device that you own or control and solely for use in conjunction with the applicable Products. All rights of every kind that are not expressly granted to you in this EULA are entirely and exclusively reserved to and by Control4. You may use this Software solely as expressly provided in this EULA. You may not rent, lease, loan, sublicense, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Product or Software, nor assist or permit anyone else to do so.
3. Intellectual Property
The Software and associated documentation and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Control4 and its licensors. Control4 and its licensors reserve all rights in and to the Software not expressly granted to you in this EULA. The Software is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to Control4 with respect to the Software shall be Control4ís property.
4. Open Source
Certain items of independent, third-party code may be included in the Software that are subject to the GNU General Public License ("GPL") or other open source licenses ("Open Source Software"). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this EULA restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the applicable license (available at www.control4.com/opensource).
5. Term And Termination
This EULA and the license granted hereunder are effective on the date you first use the Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated earlier as provided under this section. Control4 may terminate this EULA at any time if you fail to comply with any term(s) hereof or fail to pay any fees when due to Control4. You may terminate this EULA effective immediately upon written notice to Control4. In the event of any termination of this EULA or your rights hereunder, all provisions of this EULA except the License Grant in Section 2 shall survive such termination and you agree to continue to be bound by these terms. Upon termination, you agree to destroy all copies of the Software.
6. DISCLAIMER OF WARRANTY
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONTROL4 PROVIDES THE SOFTWARE "AS IS" WITHOUT WARRANTY OF ANY KIND UNLESS EXPRESSLY STATED OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONTROL4 FURTHER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CONTROL4 OR A CONTROL4 AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. CONTROL4 MAKES NO WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
7. License Rights, Use Restrictions and Maintenance
Control4 reserves all rights not expressly granted to you in this EULA. Without limiting the generality of the foregoing, you shall not (except to the limited extent expressly permitted by applicable law): (a) copy, modify, rent, lease, sell, distribute, use as a service provider for third parties or other similar type of environment, sublicense, translate, or reprogram the Software or any portion thereof; (b) timeshare the Software, make the Software available to others on the Internet or any on-line service, or allow others to copy, access or use the Software; (c) reverse engineer, decompile, or disassemble the Software; (d) use any individual component of the Software in a standalone mode; (e) create derivative works based upon the Software; (f) use the Software to perform any activity that is or may be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing, tortuous, or defamatory, nor to perform any activity that breaches the rights of any third party; (g) take any actions that would cause the Software to become subject to any open source or quasi-open source license agreement not otherwise applicable; or (h) transfer the Software or your license rights under this EULA, in whole or in part.
IN ADDITION, IN NO EVENT DOES CONTROL4 AUTHORIZE YOU OR ANYONE ELSE TO USE THE SOFTWARE WHERE THE SOFTWAREíS FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO RESULT IN SIGNIFICANT PHYSICAL INJURY, OR IN LOSS OR PROPERTY, OR IN LOSS OF LIFE. ANY SUCH USE IS ENTIRELY AT YOUR OWN RISK, AND YOU AGREE TO INDEMNIFY AND HOLD CONTROL4 HARMLESS FROM ANY AND ALL CLAIMS OR LOSSES RELATING TO SUCH UNAUTHORIZED USE.
Control4 may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software ("Updates"). You acknowledge that you may be required to install Updates to use the Software and you agree to promptly install any Updates Control4 provides. In addition, you acknowledge that Control4 may update the Software without requiring any additional consent or action from you, and you consent to Control4 updating the Software, as described above by connecting to the Control4 server. If you do not want such Updates, your remedy is to stop using the applicable Internet services in conjunction with the Software or stop using the Software altogether.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY BUT SUBJECT TO THE LAST SENTENCE OF THIS SECTION, (A) CONTROL4 WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE SOFTWARE OR THIS EULA, EVEN IF CONTROL4 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) CONTROL4íS TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SOFTWARE AND THIS EULA, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE THE PORTION OF THE PAID FEES APPLICABLE TO THE PRODUCTS OR SERVICES RELATING TO SUCH CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY OR REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED IN CONTROL4'S SOLE DISCRETION. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. CONTROL4 DISCLAIMS ALL LIABILITY OF ANY KIND OF CONTROL4íS SUPPLIERS, DISTRIBUTORS AND DEALERS. CONTROL4 IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.
9. Your Indemnification of Control4
You agree to defend, indemnify and hold harmless Control4, and its officers, directors, employees, consultants, agents, and other representatives, from and against any and all suits, claims, actions, proceedings, damages, demands, injuries, liabilities, losses, costs and expenses (including reasonable attorneysí fees), arising from or related to: (a) your negligence or willful misconduct; (b) your use of the Software; (c) your breach of any of your representations, warranties, obligations, or covenants in this Agreement; and (d) your use of Third-Party Content, defined below.
10. Third-Party Content
The Software may give you the ability to access content, such as music or video services, television or other material, controlled or provided by third parties ("Third-Party Content"). Your right to use the Software is subject to the terms of any licenses relating to such technology and data, which are hereby incorporated in this EULA by this reference. You understand and acknowledge that: (a) Third-Party Content providers may restrict or revoke your access to their content at any time; (b) Control4 is not responsible for and has no editorial control over any Third-Party Content, and Control4 does not sponsor or endorse any such content; and (c) Control4 has no control over the distribution of Third-Party Content. You agree that Control4 will have no liability to you or to any third parties, including without limitation to anyone else who uses your Control4 System, with regard to any Third-Party Content. You also agree and declare that any and all Third-Party Content accessed or transferred by you or your guests using the Services or the Control4 System are for personal, non-commercial use and that the Services will not be used to illegally copy, display or otherwise make use of Third-Party Content without authorization from the appropriate rights holder. Unauthorized copying or distribution of copyrighted or trademarked work or marks may constitute an infringement of the copyright or trademark holdersí intellectual property rights. Control4 reserves the right to terminate your account if you infringe or may infringe (in Control4ís reasonable discretion) upon the intellectual property rights of others. In addition, steps intended to defeat or bypass security measures designed to prevent infringement of the intellectual property rights of others may be illegal under U.S. law or comparable foreign laws. Control4 reserves the right to terminate your account if you develop or use any method to defeat or bypass such security measures and to take any other necessary or appropriate action to prevent infringement of the intellectual property rights of others.
11. Dealers are Independent Contractors, not Agents of Control4
You are required to purchase your Control4 System from an authorized Control4 dealer of your independent discretion. You are responsible to select a competent dealer that meets your expectations. Such dealer may offer additional installation, configuration or ongoing maintenance services. You acknowledge that your dealer is an independent service provider and is not an employee, partner, joint venture, or agent of Control4, and has no right to bind Control4 legally or otherwise make commitments on behalf of Control4. While such dealers receive training regarding Control4 Systems, Control4 has no control over its dealers and will have no responsibility or liability for the acts or omissions of your dealer, and Control4 hereby expressly disclaims any such responsibility or liability. Any disputes, which may arise between you and your dealer, are to be resolved between you and your dealer.
12. Restricted Rights
The Software is commercial in nature, and is a "Commercial Item," as that term is defined in 48 C.F.R.ß2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are defined in 48 C.F.R. ß252.227-7014(a)(5) and 48 C.F.R. ß252.227-7014(a)(1), and used in 48 C.F.R. ß12.212 and 48 C.F.R. 227.7202, as applicable. Pursuant to 48 C.F.R. ß12.212, 48 C.F.R.ß252.227-7015, 48 C.F.R. ß227.7202 through 227.7202-4, 48 C.F.R. ß52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and all related publications, commercial computer software, and commercial computer software documentation are distributed and licensed to United States Government end users, if at all, with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA.
13. Export Controls
You agree to comply with all export and import laws and restrictions and regulations of any applicable United States or foreign agency or authority, and not to export, re-export or import the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. For example, you may not export or re-export any commodities, software, or technical data received from Control4, or any direct product of such commodities, software or technical data, to any proscribed country, party, or entity listed in the applicable laws, regulations, and rules of the U.S. government, or any applicable foreign governmental authority, unless properly authorized. As applicable, you and Control4 each shall obtain and bear all expenses and responsibility relating to any necessary EULAs and/or exemptions with respect to its own export or re-export of the Software. The information regarding export laws set forth herein is not necessarily complete, and you should refer to the relevant governmental authority for more information.
(a) This EULA constitutes the entire agreement between you and Control4 concerning the subject matter hereof, and may only be modified by a written amendment signed by you and an authorized executive (Vice President or higher) of Control4. (b) Except to the extent that applicable law (if any) provides otherwise, this EULA shall be governed by the laws of the State of Utah, excluding its conflict of law provisions. (c) You expressly agree that jurisdiction for any claim or dispute arising from the use of the Software resides in the federal and state courts of the State of Utah and you consent to the personal jurisdiction thereof. (d) This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (e) YOU AND CONTROL4 EACH HEREBY UNCONDITIONALLY WAIVE YOUR AND ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING DIRECTLY OR INDIRECTLY OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN YOU AND CONTROL4. The scope of this waiver is intended to be all encompassing of any and all disputes that may be filed in any court or other tribunal (including, without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT, AND RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. (f) If any part of this EULA is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or Control4 may at its option instead terminate this EULA. (g) The controlling language of this EULA is English. If you have received a translation into another language, it has been provided for your convenience only. (h) A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (i) You may not assign or otherwise transfer by operation of law or otherwise this EULA or any rights or obligations herein. Control4 may assign this EULA to any entity at its sole discretion. (j) This EULA shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (k) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
Last updated: November 12, 2012
YOUR PRIVACY MATTERS
COLLECTION OF INFORMATION
Information You Provide
We may ask you to provide personal information when you visit our Site, use our services or products, register for a program or service on the Site, place an order, subscribe to a newsletter, respond to a survey, fill out a form, or in connection with other activities, services, features or resources we make available from time to time. You may be asked for, as appropriate, your name, email address, mailing address, phone number and/or credit card information. Additionally, we may request information about the Control4 products you use, or third-party products connected to your Control4 system, such as model or serial numbers. In the case of a technical issue, we may also collect information relating to a support or service incident.
Information Collected Automatically
To measure and improve the performance of our Site, we may also collect non-personal information during your visit to the Site through our automatic data collection tools, which may include Web beacons, cookies, embedded Web links, pixel tags and other commonly used information-gathering tools.
Web Browser Cookies
A "cookie" is a small piece of data stored on a user's device, and contains non-personally identifiable information about the user. When you visit the Site, Control4 may place a "cookie" on your device in order to improve your experience by recognizing you when you visit the Site again, and in order to allow us to optimize the information presented based on your demonstrated areas of interest. Cookies may also be used to compile information about Site usage. This information can be used to enhance the content of the Site and make your experience more informative. If you subsequently provide us with your personal information, such as your email address, we will associate any cookies on your device with that information such that you will no longer be an anonymous visitor to the Site.
If you have set your browser to reject cookies, you can still use the Site, but you may need to re-enter information that would normally be obtained from the cookie (for example, your email address). You can set your browser to warn you before accepting cookies. If you do, you will receive a warning message each time the Site attempts to place a cookie on your hard drive.
Other Tracking Technologies
In some of our email messages we use a "click-through URL" linked to content on the Site. When a customer clicks one of these URLs, they pass through our web server before arriving at the destination web page. We track this click-through data to help us determine interest in particular topics and measure the effectiveness of our customer communications. If you prefer not to be tracked this way, simply avoid clicking text or graphic links in the email.
In addition we use pixel tags ó tiny graphic images ó to tell us what parts of our Site customers have visited or to measure the effectiveness of searches customers perform on our Site. Pixel tags also enable us to send email messages in a format that customers can read. Pixel tags also tell us whether emails have been opened to assure that we're only sending messages that are of interest to our customers.
WHY WE COLLECT INFORMATION
Control4 may collect and use personal information for the following purposes:
- To improve customer service and respond to requests. Information you provide helps us respond to your service requests and support needs more efficiently, and enables us to contact you in response to your requests for support, sales or product information.
- To personalize your experience. We may use information in the aggregate to understand how our visitors and customers as a group use the services and resources provided on our Site.
- To improve our products and services. We may use feedback you provide to improve our products and services.
- To process payments. We use the information provided by our customers when they place an order so that we can process that order and provide the products and services ordered.
- To run a promotion, contest, survey or other feature, or to provide visitors and customers information they requested or agreed to receive about topics we think will be of interest to them.
- To send periodic emails. We may use email addresses to send customer's information and updates pertaining to their order. It may also be used to respond to their inquiries, questions, and/or other requests. If a visitor or customer decides to opt-in to our mailing list, they will receive emails that may include company news, newsletters, surveys, updates, related product or service information, and the like.
HOW TO OPT-OUT OF COMMUNICATIONS FROM CONTROL4
When you provide personally identifiable information by filling out a form on the Site, you have the option to opt-in to receiving communications from Control4. If you opt-in and change your mind at any time, you may tell us that you do not wish to receive these messages by sending an email to privacy@ Control4.com, by clearly following the "unsubscribe" instructions at the bottom of any email you receive, or by contacting the privacy department at the address above to unsubscribe from mailing lists.
HOW WE PROTECT YOUR PERSONAL INFORMATION
Control4 takes precautions ó including industry standard administrative, technical, and physical measures ó that are designed to safeguard the personal information collected from visitors and customers against loss, theft, and misuse, as well as unauthorized access, disclosure, alteration, and destruction. Control4 and its associated services use Secure Sockets Layer (SSL) encryption on all web pages, applications and software services where personal information is required or transmitted, all of which is designed to protect the confidentiality of your personal and credit card information when it's transmitted over the Internet.
WHEN WE DISCLOSE YOUR PERSONAL INFORMATION
In Connection with Legal Process or Investigation
Control4 will disclose your personal information to a third party if required to do so by law or if, in good faith, Control4 believes that such action is necessary to: (I) comply with the law or with legal process; (ii) protect and defend Control4's rights and property or prevent fraud; (iii) protect Control4 against abuse, misuse or unauthorized use of Control4's products or services; or (iv) protect the personal safety or property of personnel, users or the public. Among other things, this means that if you provide false or deceptive registration information or attempt to pose as someone else, information about you, including your computer's IP address, may be disclosed to a third party (including the recipient of an email) as part of any type of investigation into your actions.
Protecting the privacy of the very young is especially important to Control4. For that reason, and in accordance with the Children's Online Privacy Protection Act, we never collect or maintain information at the Site from those we actually know are under 13, and no part of the Site is structured to attract anyone under 13.
Control4 abides by the safe harbor framework set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information collected from the European Union. You can learn more about the U.S. Department of Commerce Safe Harbor Program at www.export.gov/safeharbor.
THIRD PARTY LINKED WEBSITES
ACCESSING AND UPDATING YOUR INFORMATION
As a visitor or customer, you are always entitled to access and update your personal information or modify communication preferences by updating your account settings at customer.control4.com or by contacting:
Attention: Privacy Request
11734 S. Election Road
Salt Lake City, UT 84020
Last updated: November 12, 2012