By
using the software (“Product Software”) that is embedded on the VT Energy
product (“Product”), you agree to the terms of this End User License Agreement
(“EULA”) between you and VT Energy s.r.l. (“VT Energy” or “we”). IF YOU DO NOT
AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE. Your use
of (a) the Site, (b) services through the Site (and any updates thereto) (“Site
Services”), and (c) certain software that may be downloaded to your mobile
device (and any updates thereto) (“Mobile Software”) is governed by the Terms
of Service. Your purchase of the Product (excluding the Product Software) is
governed by the VT Energy limited warranty, the terms of which are provided
with the Product. This EULA does not govern your use of the Site, Site
Services, or Mobile Software, or your purchase of the Product (excluding the
Product Software).
This
EULA governs your access and use of the Product Software. This EULA gives you
specific legal rights, and you may also have other legal rights in addition,
which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and
limitations of liability under this EULA 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 this EULA may not
apply to you.
THIS
IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT SOFTWARE, YOU ARE
ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU
REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU
HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON
BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF
SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE
PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF
THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT
SOFTWARE.
AS
DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT
SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT SOFTWARE.
AS
DESCRIBED BELOW, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT
SOFTWARE AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND
CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE
ACKNOWLEDGING THEM AND ACCEPTING THEM.
Subject
to the terms of this EULA, VT Energy grants to you a limited and nonexclusive
license (without the right to sublicense) to execute one (1) copy of the
Product Software, in executable object code form only, solely on the Product
that you own or control and solely for use in conjunction with the Product for
your personal, non-commercial purposes.
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 Product Software or make the Product Software
available to any third party, (b) copy or use the Product Software for any
purpose other than as permitted in Section 1, (c) use any portion of the
Product Software on any device or computer other than the Product that you own
or control, (d) remove or alter any trademark, logo, copyright or other
proprietary notices, legends, symbols or labels in the Product Software, or (e)
modify, make derivative works of, disassemble, reverse compile or reverse
engineer any part of the Product Software (except to the extent applicable laws
specifically prohibit such restriction for interoperability purposes, in which
case you agree to first contact VT Energy and provide VT Energy 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 Product Software to any third party without prior written approval of VT
Energy for each such release.
VT
Energy may from time to time develop patches, bug fixes, updates, upgrades and
other modifications to improve the performance of the Product Software and
related services (“Updates”). These may be automatically installed without
providing any additional notice or receiving any additional consent. You
consent to this automatic update. If you do not want such Updates, your remedy
is to stop using the Product. If you do not cease using the Product, you will
receive Updates automatically. You acknowledge that you may be required to
install Updates to use the Product and the Product Software and you agree to
promptly install any Updates VT Energy provides. Your continued use of the
Product is your agreement to this EULA.
The
Product Software and all worldwide copyrights, trade secrets, and other
intellectual property rights therein are the exclusive property of VT Energy
and its licensors. VT Energy and its licensors reserve all rights in and to the
Product Software not expressly granted to you in this EULA. The Product
Software (and all copies thereof) 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 VT Energy with respect to the Product Software shall be VT
Energy’s property. VT Energy may use, copy, modify, publish, or redistribute
the submission and its contents for any purpose and in any way without any
compensation to you. You also agree that VT Energy does not waive any rights to
use similar or related ideas previously known to VT Energy, developed by its
employees, or obtained from other sources.
Certain items of software included
with the Product Software are subject to “open source” or “free software”
licenses (“Open Source Software”). Some of the Open Source Software is owned by
third parties. The Open Source Software is not subject to the terms and
conditions of this EULA. Instead, each item of Open Source Software is licensed
under the terms of the end user 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 the
Open Source Software. If required by any license for particular Open Source
Software, VT Energy makes such Open Source Software, and VT Energy’s modifications to that Open Source Software, available by written
request to VT Energy at the email or mailing address listed below.
This
EULA and the license granted hereunder are effective on the date you first use
the Product Software or Product and shall continue for as long as you own the
Product, unless this EULA is terminated under this section. VT Energy may
terminate this EULA at any time if you fail to comply with any term(s) hereof.
You may terminate this EULA effective immediately upon written notice to VT
Energy. Upon termination of this EULA, the license granted hereunder will
terminate and you must stop all use of the Product Software, but the terms of
Sections 2 through 18 (inclusive) will remain in effect, after any such
termination.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
VT Energy PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES
AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET
ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. VT Energy DOES
NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. VT
Energy MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE
OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU
USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE
PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR
(AND VT Energy DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO
YOUR HVAC SYSTEM, PLUMBING, HOME, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE
PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME,
RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR
PRODUCT.
Nothing
in this EULA and in particular within this “Limitation of Liability” clause
shall attempt to exclude liability that cannot be excluded under applicable
law.
TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE
WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) VT Energy BE LIABLE FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES
FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR
PRODUCT SOFTWARE, EVEN IF VT Energy KNEW OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH DAMAGES, AND (B) VT Energy’s TOTAL CUMULATIVE LIABILITY
ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN
CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO VT
Energy OR VT Energy’s AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR
12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY
THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. VT Energy DISCLAIMS ALL
LIABILITY OF ANY KIND OF VT Energy’s LICENSORS AND SUPPLIERS.
You
acknowledge that the Products and Product Software are not certified for
emergency response. YOU UNDERSTAND THAT THE PRODUCTS AND PRODUCT SOFTWARE ARE
NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM — VT Energy DOES NOT
MONITOR EMERGENCY NOTIFICATIONS AND WILL NOT DISPATCH EMERGENCY AUTHORITIES TO
YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, the VT Energy Customer
Care and Support contacts cannot be considered a lifesaving solution for people
at risk in the home, and they are no substitute for emergency services. All
life threatening and emergency events should be directed to the appropriate
response services.
Unless
explicitly promising a “guarantee,” VT Energy does not guarantee or promise any
specific level of energy savings or other monetary benefit from the use of the
Products or Product Software or any feature of them. Actual energy savings and
monetary benefits vary with factors beyond VT Energy’s control or knowledge.
From time to time, VT Energy may use the Product Software to provide you with
information that is unique to you and your energy usage and suggests an
opportunity to save money on energy bills if you adopt suggestions or features
of the Product or Product Software. We do this to highlight an opportunity
based on our analysis and information about you and your household. You
acknowledge that these promotions are not a guarantee of actual savings, and
you agree not to seek monetary or other remedies from VT Energy if your savings
differ.
The
Product Software provides you information (“Product Information”) regarding the
Products in your home and their connection with other products and services.
All Product Information is provided “as is” and “as available”. We cannot
guarantee that it is correct or up to date. In cases where it is critical,
accessing Product Information through the Product Software is not a substitute
for direct access of the information in the home.
“Confidential
Information” shall mean the Product Software and all other information
disclosed to you that VT Energy characterizes as confidential at the time of
its disclosure either in writing or orally, except for information which you
can demonstrate: (a) is previously rightfully known to you without restriction
on disclosure; (b) is or becomes, from no act or failure to act on your part,
generally known in the relevant industry or public domain; (c) is disclosed to
you by a third party as a matter of right and without restriction on
disclosure; or (d) is independently developed by you without access to the
Confidential Information. You shall use your best efforts to preserve and
protect the confidentiality of the Confidential Information at all times, both
during the term hereof and for a period of at least 3 years after termination of
this EULA, provided, however, that any source code you receive shall be held in
confidence in perpetuity. You shall not disclose, disseminate or otherwise
publish or communicate Confidential Information to any person, firm,
corporation or other third party without the prior written consent of VT
Energy. You shall not use any Confidential Information other than in the course
of the activities permitted hereunder. You shall notify VT Energy in writing
immediately upon discovery of any unauthorized use or disclosure of
Confidential Information or any other breach of this EULA, and will cooperate
with VT Energy in every reasonable way to regain possession of Confidential
Information and prevent any further unauthorized use. If you are legally
compelled to disclose any of the Confidential Information, then, prior to such
disclosure, you will (i) immediately notify VT Energy
prior to such disclosure to allow VT Energy an opportunity to contest the
disclosure, (ii) assert the privileged and confidential nature of the
Confidential Information, and (iii) cooperate fully with VT Energy in
protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event such protection is not obtained, you shall disclose
the Confidential Information only to the extent necessary to comply with the
applicable legal requirements.
The
Product Software is a “commercial item,” as that term is defined at 48 C.F.R.
2.101 (OCT 1995), and more specifically is “commercial computer software” and
“commercial computer software documentation,” as such terms are used in 48
C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4 (JUNE 1995), the Product Software is provided to
U.S. Government End Users only as a commercial end item and with only those
rights as are granted to all other customers pursuant to the terms and
conditions herein.
The
Product Software and related technology are subject to EU export control laws
and may be subject to export or import regulations in other countries. You
agree to strictly comply with all such laws and regulations and acknowledge
that you have the responsibility to obtain authorization to export, re-export,
or import the Product Software and related technology, as may be required. You
will indemnify and hold VT Energy harmless from any and all claims, losses,
liabilities, damages, fines, penalties, costs and expenses (including
attorney’s fees) arising from or relating to any breach by you of your
obligations under this section.
The
courts in some countries will not apply Italy/EU law to some types of disputes.
If you reside in one of those countries, then where Italian law is excluded
from applying, your country’s laws will apply to such disputes related to these
terms. Otherwise, you agree that this EULA, and any claim, dispute, action,
cause of action, issue, or request for relief relating to this EULA, will be
governed by the laws of Italy, without giving effect to any conflicts of laws
principles that require the application of the laws of a different
jurisdiction. Any action or proceeding relating to this EULA must be first
brought to ADR of CTIA (please refer to Client Complaints Policy). Then the
unresolved dispute shall be brought in a court located in Italy and each party
irrevocably submits to the jurisdiction and venue of any such court in any such
claim or dispute, except that VT Energy may seek injunctive relief in any court
having jurisdiction to protect its intellectual property or Confidential
Information.
Neither
the rights nor the obligations arising under this EULA are assignable by you,
and any such attempted assignment shall be void and without effect.
Any
notice to you may be provided by email to the address that you registered with
VT Energy.
If
any provision of this EULA is unenforceable, such provision will be changed and
interpreted to accomplish the objectives of such provision to the greatest
extent possible under applicable law and the remaining provisions will continue
in full force and effect.
All
waivers by VT Energy will be effective only if in writing. Any waiver or
failure by VT Energy to enforce any provision of this EULA on one occasion will
not be deemed a waiver of any other provision or of such provision on any other
occasion.
The
Product Software is deemed irrevocably accepted upon your use of the Product
Software or Product. VT Energy will have no responsibility to provide
maintenance or support services with respect to the Product Software. The
parties are independent contractors.
You
acknowledge that the Product Software contains valuable trade secrets and
proprietary information of VT Energy, that any actual or threatened breach of
Section 2 (Restrictions) of this EULA will constitute immediate, irreparable
harm to VT Energy for which monetary damages would be an inadequate remedy, and
that injunctive relief is an appropriate remedy for such breach.
The
headings of Sections of this EULA are for convenience and are not to be used in
interpreting this EULA.
Except
as otherwise provided in this section, no amendment to this EULA will be valid
unless it is in writing hand-signed by the parties.
Questions
or Additional Information. If you have questions regarding this EULA, please
contact VT Energy.