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