END USER SOFTWARE LICENSE AGREEMENT
These terms govern you use of the Akita Device (the "Device") and the accompanying mobile application (the "App", and together with the Device, the "Product") and constitutes a legally binding agreement (the "Agreement") between you ("user" or "you") and HighIoT Ltd. (“Company”). By clicking the "Accept" button, downloading, using or installing any part of the Product you expressly agree to the terms of this Agreement. If you do not accept you may not access, use or install any part of the Product.
This Agreement may be amended from time-to-time at the sole discretion of the Company by posting an amended End User License Agreement on the App. We urge you to check the App periodically for updates. Your continued use of the Product following the amendment of this agreement shall indicate your acceptance to the amended agreement. You hereby waive any rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
By accepting this Agreement, you acknowledge and agree that we may use our security technology to scan your network and any traffic on your network in an impersonal mode solely to detect malware and other threats and to prevent damage resulting from malware programs.
- Ability to Accept. By using the Product you affirm that you are over 18 years of age. If you are accepting these terms on behalf of a corporation you represent that you have the power to bind such corporation, and the term user and you shall refer to such corporation.
- License. Subject to the terms and conditions of this Agreement, we hereby grant you a personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable license (“License”) to use the Product, including any software installed thereon, and to use the App on the mobile device on which it was originally installed that you own or control in accordance with this Agreement and any applicable Usage Rules (as defined below).
- License Restrictions. You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, sell, lease, lend or rent the Product; (ii) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of the Product or any part thereof; (iii) copy (except for back-up purposes), modify, improve or create derivative works of the Product or any part thereof; (iv) circumvent, disable or otherwise interfere with security-related features of the Product or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Product; (v) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Product; (vi) use the Company's name, logo or trademarks without our prior written consent; and/or (ix) use the Product to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
- Transfer. If you are transferring rights of the Product granted herein to any third party in connection with the sale or transfer of the Device, such rights shall be subject to the terms hereof. The transfer may not be an indirect transfer, such as a consignment.
- Third Party Services. The Product may allow for the ordering of third party services, or may redirect to a third party service or website. Such services are not provided by the Company or on its behalf and the Company shall have no liability with respect thereto.
Intellectual Property Rights
The Intellectual Property Rights (as defined below) embodied or incorporated in the Product are licensed and not sold to you under this Agreement and you acknowledge that the Company and its licensors retain all title, ownership rights and Intellectual Property Rights in and to the Product. We reserve all rights not expressly granted herein to the Product. “Intellectual Property Rights” means any and all rights, titles and interests in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic.
- THE PRODUCT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
- WE DO NOT WARRANT THAT THE PRODUCT WILL IDENTIFY AND/OR ALERT OF ALL THREATS TO YOUR CONNECTED SMART HOME SYSTEMS. WE DO NOT WARRANT THAT THE PRODUCT WILL OPERATE ERROR-FREE, THAT THE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE PRODUCT. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY OR THROUGH THE PRODUCT SHALL BE DEEMED TO ALTER THIS DISCLAIMER OF WARRANTY, OR TO CREATE ANY WARRANTY.
- Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
Limitation of Liability
- UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, VIRUS LINE FAILURE OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE PRODUCT AS WELL AS ANY THIRD PARTY CONTENT OR SERVICE AVAILABLE THEREON, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THAT EXTENT SUCH EXCLUSIONS MAY NOT APPLY.
- IN ANY EVENT, THE COMPANY'S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE PRODUCT OR THIRD PARTY SOURCES SHALL NOT IN ANY CIRCUMSTANCE EXCEED ONE HUNDRED DOLLARS ($100).
- Indemnity. You agree to defend, indemnify and hold harmless the Company and its affiliates, and its respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of, or inability to use, the Product; (ii) your violation of this Agreement; and (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right. Without derogating from or excusing your obligations under this section, we reserve the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
- Third Party Open Source Software. Portions of the Product may include third party open source software that is subject to third party terms and conditions (“Third Party Terms”). A list of any third party open source software and related Third Party Terms is available at http://akita.cloud/privacy-policy. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open source software. Notwithstanding anything in this Agreement to the contrary, the Company makes no warranty or indemnity hereunder with respect to any third party open source software.
- Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the Product nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
- Updates and Upgrades. We may from time to time provide updates or upgrades to the Product (each a “Revision”), but are not under any obligation to do so. Such Revisions will be supplied according to our then-current policies, which may include automatic updating or upgrading without any additional notice to you. You consent to any such automatic updating or upgrading of the Product. All references herein to the Product shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original Product, unless the Revision is accompanied by a separate license agreement which will govern the Revision. To use the Product identified as an upgrade, you must first be licensed for the Product identified by the Company as eligible for the upgrade. After upgrading, you may no longer use the Product that formed the basis for your upgrade eligibility. Revisions may include important security updates. Please make sure to install Revisions, or the ability to secure transactions through the Device could be diminished.
Term and Termination.
- This Agreement is effective until terminated by us or you. We reserve the right, at any time, to: (i) discontinue or modify any aspect of the Product; and/or (ii) terminate this Agreement and your use of the Product with or without cause, and shall not be liable to you or any third party for any of the foregoing. If you object to any term or condition of this Agreement or any subsequent modifications thereto, or become dissatisfied with the Product in any way, your only recourse is to immediately discontinue use of the Product.
- Upon termination of this Agreement, you shall cease all use of the Product. This Section 14.2, and Sections 3, 7, 8, 9, 10, 17, and 18 shall survive termination of this Agreement.
- Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by the Company without restriction or notification.
- Governing Law and Disputes. This Agreement shall be governed by and construed in accordance with the laws of Israel without regard to its conflict of laws rules. You agree to submit to the personal and exclusive jurisdiction of the courts located in Tel Aviv, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction.
- General. This Agreement, and any other legal notices published by us in connection with the Product, shall constitute the entire agreement between you and the Company concerning the Product. In the event of a conflict between this Agreement and any of the foregoing, the terms of this Agreement shall prevail. No amendment to this Agreement will be binding unless in writing and signed by the Company. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and a party's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE PRODUCT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.