29
10. Termination: This EULA is eective until and unless terminated.
Subject to Section 13, this EULA will terminate automatically
if LICENSEE fails to comply with any provision of the License.
If LICENSEE is a business entity or other entity, any failure to
comply with the terms and condition of this EULA by any individual
employed or engaged by such entity will be deemed a failure to
comply by LICENSEE. Upon any termination, LICENSEE shall destroy
all copies of Software and User Manual.
11. Warranty: (a)ecobee shall provide its standard Product and
Software limited warranty statement (“Customer Warranty”),
which equally applies to the Software embedded in the Product,
and which is incorporated by reference herein, with the Product
for your benet only. In the event of an Error in connection with
the Software, refer to the Customer Warranty and Terms of Sale
provided with the Product for further detail.
(b) EXCEPT FOR THE REPRESENTATIONS, WARRANTIES, AND
COVENANTS EXPRESSLY CONTAINED IN THIS EULA, THE PRODUCT
TERMS OF SALE AND THE PRODUCT WARRANTY, THE SOFTWARE
AND SOFTWARE DOCUMENTATION AND ANY SUPPORT IS PROVIDED
ON AN “AS IS” BASIS, AND THERE ARE NO OTHER REPRESENTATIONS,
WARRANTIES, COVENANTS, OR CONDITIONS, EXPRESS OR IMPLIED
(INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MER-
CHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND
THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A
COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, BUT NOT
LIMITED TO, NON-INFRINGEMENT, CORRECTNESS, FUNCTIONALITY,
RELIABILITY, ACCURACY, CURRENTNESS, OPERATION, USE OR THE
RESULTS OF THE USE BY LICENSEE, THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE (OR THAT ALL
ERRORS CAN OR WILL BE CORRECTED) OR THAT THE SOFTWARE OR
SOFTWARE DOCUMENTATION WILL MEET LICENSEE’S REQUIREMENTS,
ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE
MAXIMUM EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO
NOT PERMIT LIMITATIONS ON OR EXCLUSIONS OF CERTAIN IMPLIED
WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN
DAMAGES; THEREFORE THE ABOVE LIMITATIONS MAY NOT APPLY
TO YOU IN CERTAIN CIRCUMSTANCES. ecobee DISCLAIMS AND
SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY AND ALL ACTS OF
THIRD PARTIES. NO OTHER PERSON IS AUTHORIZED TO EXTEND,
VARY OR TRANSFER ANY PROVIDED WARRANTY ON BEHALF OF
ecobee. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE
AND USE OF THE SOFTWARE, SOFTWARE DOCUMENTATION AND
ANY PROVIDED SUPPORT IS ASSUMED BY LICENSEE.
12. Limitation: IN NO EVENT AND TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW SHALL ECOBEE, ITS SHARE-
HOLDERS, AFFILIATES,CONTRACTORS, SUPPLIERS AND AGENTS
AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES
30
(COLLECTIVELY THE “ECOBEE PARTIES”) BE LIABLE TO LICENSEE OR
ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY,
SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING
WITH RESPECT TO LOSS OF, OR DAMAGE TO, DATA OR COMPUTER
SYSTEMS OR RELIANCE ON ANY DATA DERIVED FROM LICENSEE’S
USE OF THE SOFTWARE, OR LOSS OF REVENUE OR PROFIT OR
OTHER ECONOMIC LOSS) OF ANY KIND OR NATURE WHATSOEVER
SUFFERED BY LICENSEE OR ANY THIRD PARTY HOWSOEVER
CAUSED AND WHETHER RESULTING FROM THE USE OF OR INABILITY
TO USE THE SOFTWARE OR OTHERWISE (INCLUDING AS A RESULT
OF OR DUE TO USE OF OR RELIANCE ON THE SOFTWARE AND/
OR ecobee WEB PORTAL) AND REGARDLESS OF THE FORM OR
CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE
OR ecobee HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. ECOBEE PARTIES’TOTAL LIABILITY AND OBLIGATION
TO LICENSEE, IN THE AGGREGATE FOR ANY AND ALL CLAIMS
ARISING OUT OF OR IN ANY CONNECTION WITH THIS EULA, THE
TERMS OF SALE IN CONNECTION WITH YOUR PURCHASE OF THE
PRODUCT AND YOUR USE OF THE SOFTWARE AND PRODUCT, WITH
RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY
OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY
OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT,
NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE
ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED AN
AMOUNT THAT IS EQUIVALENT TO THE PURCHASE PRICE OF THE
ecobee PRODUCT ACTUALLY PAID BY LICENSEE. THIS SECTION
SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR
FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT.
13. Survival: The parties acknowledge and agree that the provisions
of Sections 2, 6, 7, 9, 11(b), 12, 13, 14, 15, 16 and 17 shall survive any
termination of this EULA for any reason.
14. English Language: The parties declare that they have required
that this agreement and all documents related hereto, either
present or future, be drawn up in the English language only. Les
parties déclarent par les présentes qu’elles exigent que cette entente
et tous les documents y aérents, soit pour le présent ou le futur,
soient rédigés en langue anglaise seulement.
15. Jurisdiction: This EULA shall be exclusively governed by, construed
and interpreted in accordance with the laws of the Province of
Ontario, Canada. For the purpose of all legal proceedings this
EULA shall be deemed to have been performed in the Province of
Ontario, Canada and the parties expressly conrm that the law of
the Province of Ontario is the proper law. If Customer is located in
a jurisdiction other than Canada, the parties agree that neither the
United Nations Convention of the International Sale of Goods or
the (U.S.) Uniform Computer Information Transactions Act shall