End User Agreement

 

 LobiBox END USER LICENSE AGREEMENT

 Effective Date: September 23, 2020

Open TV, Inc. provides a mobile application that may be downloaded to your mobile device or tablet to access services (“Mobile App”) in conjunction with its LobiBox product (“Product”) which provides building access for individuals. By using the software contained in the Mobile App (“Mobile App Software”), you agree to the terms of this End User License Agreement (“EULA”) between you and OpenTV, Inc., (also referred to as “we,” “us,” or “our”) which solely governs your use of the Mobile App Software.  You acknowledge the Privacy Notice associated with the Product.

 

We offer our Mobile App Software, including all information, tools and services available from them, to you, the user, conditioned upon your acceptance of this EULA.  This EULA takes effect when you click an “I Accept” button or check box presented with these terms and conditions or, if earlier, when you use Mobile App Software (the “Effective Date”). Your access and/or use of our Mobile App Software constitutes your agreement to this EULA and governs your access and use of our Mobile App. You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

 

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE MOBILE APP SOFTWARE.

 

This EULA gives you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.

 

Arbitration and Governing Law.

 

This Agreement is governed by the laws of the State of California, regardless of any conflict of law provisions.  All disputes will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: CT Corporation System, 3800 N. Central Avenue, Suite 460 Phoenix, Arizona 85012. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA's rules. We will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

License.

 

Subject to the terms of this EULA, Open TV Inc. grants to you a limited, personal, revocable, non-assignable, non-transferable, non-resellable, and non-exclusive right and license (without the right to sublicense) to use the Mobile App Software in connection with your usage of the Mobile App strictly in accordance with this Agreement.

 

Restrictions.

 

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Mobile App Software or make the Mobile App Software available to any third party, (b) copy or use the Mobile App Software for any purpose other than as permitted by this Agreement, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Mobile App Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Mobile App Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact Open TV Inc. and provide Open TV Inc. an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Mobile App Software to any third party without prior written approval of Open TV Inc. for each such release.

 

Automatic Software Updates.

 

You acknowledge that Open TV Inc. may from time to time develop and issue patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Mobile App Software and related services (“Updates”) and that these Updates may be automatically installed without providing any additional notice or receiving any additional consent. You consent to such automatic upgrading on your mobile device and agree to promptly upgrade the Mobile App in the event there is no automatic update. If you do not want such Updates, your remedy is to stop using the Mobile App. Your continued use of the Mobile App is your agreement to this EULA. Any third-party code that may be incorporated in the Mobile App is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. 

 

Intellectual Property.

 

You agree that the Mobile App Software and all worldwide copyrights, trade secrets, and other intellectual property rights (“Intellectual Property Rights”) therein are owned exclusively by Open TV Inc. and its licensors. Open TV Inc. and its licensors reserve all rights in and to the Mobile App Software not expressly granted to you in this EULA. There are no implied licenses in this EULA. The Mobile App Software (and all copies thereof) is licensed to you, not sold, under this EULA. All suggestions or feedback provided by you to Open TV Inc. with respect to the Mobile App Software shall be our property. We may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you.

 

Term; Termination.

 

This EULA and the license granted hereunder are effective on the date you first use the Mobile App Software or Product and continues for as long as you use the Mobile App Software, unless this EULA is terminated under this section. We may terminate this EULA at any time if you fail to comply with any terms set forth herein. You may terminate this EULA effective immediately upon written notice to us. Upon termination of this EULA, the license granted hereunder and all rights granted hereunder will terminate and you must stop all use of the Mobile App Software and Product.

 

Warranties.

THE PRODUCT AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE PRODUCT AND SERVICES OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE, ACCURATE, RELIABLE, OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. 

 

OPEN TV INC. RESERVES THE RIGHT, WITHOUT PRIOR NOTICE, TO CORRECT ANY ERRORS OR OMISSIONS AND TO CHANGE OR UPDATE INFORMATION AT ANY TIME BUT IS UNDER NO OBLIGATION TO.

 

Indemnification.

 

You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees arising out of or relating to any third-party claim concerning: (a) your or any authorized users’ use of the Product and Services (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, authorized user or your Content; or (c) a dispute between you and any authorized user. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at our then-current hourly rates.

 

Limitations of Liability.

 

WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPT FOR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

 

No Monitoring Services.

 

The Mobile App Software is not intended to be an emergency notification system (e.g. 911), emergency service provider, or lifesaving solution for individuals at their home, places of employment, or otherwise. We do not monitor the Product or Services for any emergency notifications and will not dispatch emergency authorities to your home in the event of an emergency. We make no warranties, representations or promises of any kind that the use of the Product or Services will affect or increase any level of safety. You acknowledge that the Product and Services are not intended to be 100% reliable and are not a substitute for a third-party monitored emergency notification system. We cannot and do not guarantee that you will receive notifications in any given timeframe or at all. All life threatening, safety and emergency events should be directed to the appropriate response services.

 

DO NOT CONTACT ANY CUSTOMER SERVICE OR SUPPORT OFFERED BY OPEN TV, INC. WITH ANY EMERGENCY. IF YOU HAVE ANY EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, 911, OR APPROPRIATE EMERGENCY RESPONSE SERVICE.

 

Compliance with Laws.

 

Each party will comply with all laws and regulations, applicable to that party in connection with this Agreement including all applicable import, re-import, sanctions, anti-boycott, export and re-export control laws and regulations. For clarity, you are solely responsible for compliance related to the manner in which you and your authorized users choose to use the Services.

 

No Waivers.

 

The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

 

Severability.

 

If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

 

Assignment.

 

You may not assign the rights or obligations arising under this EULA and any such attempted assignment shall be void and without effect.

 

Independent Contractors

 

You agree and understand that you and OpenTV Inc. are independent contractors to each other, and this Agreement will not be construed to create a partnership, joint venture, agency, employment relationship, or other similar legal relationship between OpenTV Inc. and you and that you are not a subcontractor of OpenTV Inc. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

 

General.

 

Open TV Inc. reserves the right to provide maintenance or support services with respect to the Mobile App Software but is under no obligation to. Open TV Inc. also reserves the right, without prior notice, to correct any errors or omissions and to change or update the Mobile App Software, but is under no obligation to.  

 

Headings.

 

Headings in this Agreement are for reference purposes only and are not to be interpreted as being part of this Agreement.