This Agreement is between Cognitive Systems Corp. (“Cognitive”) and the individual creating an account on the Site pursuant to this Agreement (“User”) and relates to User’s use of Aura®, a wireless motion-monitoring system for the home (“Product”), including all hardware and executable versions of software embedded within a Product or otherwise made available by Cognitive to facilitate User’s use of a Product, all as from time to time updated, enhanced or otherwise modified by Cognitive, in its sole discretion, (“Software”).
User will be legally bound by this Agreement and should read it carefully. When prompted, User must check the appropriate box to accept the terms of this Agreement and use a Product. If User does not indicate its acceptance of such terms by checking the appropriate box, User will not be able to use a Product.
1. Personal Information
Cognitive grants to User a non-exclusive, non-transferable and revocable license to use Software solely in the United States or Canada for a Product’s intended purposes. Except as expressly stated in this Agreement, all right, title and interest in Software and all documentation relating thereto remain at all times with Cognitive and User will not (and will not permit any third party to) copy, download, modify, prepare derivative works of, use (other than solely for the benefit of User as expressly provided herein), distribute, share, sell, sublicense or otherwise transfer, or disassemble, decompile, reverse engineer or otherwise attempt to learn the source code or structure of, or any algorithm or coding technique used within, Software.
3. Return Policy
A User may not return a Product for any reason, unless such User purchased such Product directly from Cognitive or from an authorized dealer of Cognitive. Only the purchaser of a Product may return such Product, subject to the provisions of Cognitive’s Return Policy as set forth in the Terms of Sale in effect with respect to such Product.
In using a Product, User must establish an account with Cognitive that is accessible using a user name and password selected by User. User’s user name and password must comply with whatever protocol is from time to time established by Cognitive for user names and passwords, and must not be disclosed by User to third parties. User (a) is responsible for maintaining the confidentiality of User’s user name and password, and (b) must immediately notify Cognitive in writing of any loss, or any unauthorized access, disclosure or use, of User’s user name or password. Cognitive will not have any liability to User or any third party arising from User’s failure to keep User’s user name or password confidential and may at any time, in its sole discretion and without notice to User, terminate or temporarily disable User’s access to such account. In addition, Cognitive may rely on any use of User’s user name or password, whether by User or any third party, as having been authorized by User, unless (a) User previously notified Cognitive in writing of any loss, or any unauthorized access, disclosure or use, of User’s user name or password, (b) Cognitive has had a reasonable opportunity of not less than five days to act on such notice and (c) Cognitive’s acting on such notice would have clearly avoided any third-party use of such account that was not authorized by User.
All right, title and interest in any content (including, but not limited to, all intellectual property rights therein) made available through the Site or a Product (collectively “Content”) belongs to, or is licensed by, Cognitive, unless stated otherwise in writing by Cognitive. User may access and use any Content solely in connection with User’s authorized use of a Product, and for no other purpose; provided, however, that User may not, in any case, use any Content for any purpose prohibited by (a) Cognitive, in its sole discretion, after User receives notice of such prohibition, (b) this Agreement, or (c) any applicable law. User must at all times use reasonable efforts to keep all Content confidential, and not disclose it to any third party, unless such third party needs to know such Content in connection with User’s use of a Product as permitted by this Agreement or as required by applicable law. User may make copies of any Content only (a) in connection with User’s use of a Product as permitted by this Agreement, (b) as required by any applicable law, or (c) as otherwise authorized in writing by Cognitive.
6. Third-Party Vendors
Cognitive may rely on third parties to provide products, services and content in connection with a Product, the Site or this Agreement (collectively “Third-Party Vendors”), and Cognitive will have no responsibility or liability with respect to Third-Party Vendors or their products, services or content. Third-Party Vendors may impose additional terms upon User’s use of such products, services and content, and User will be bound by such terms just as though they are set forth in this Agreement in their entirety. If User desires to receive a copy of such terms, User should request one in writing from Cognitive as set forth in Section 19.
7. User’s Responsibilities
User is solely responsible and liable for (a) obtaining and maintaining all third-party equipment, software and services necessary to use the Site and a Product, (b) protecting access to, and security of, all equipment, software and services used to connect to the Site, (c) performing all of User’s obligations pursuant to this Agreement, (d) obtaining and maintaining appropriate licenses and rights for use of any third-party products (including, but not limited to, web-browser software), equipment or services in connection with using the Site or a Product, and for paying all fees associated therewith, (e) all fees payable pursuant to this Agreement as a result of the use by User or any third party of User’s account, user name or password, except as set forth in Section 4, (f) promptly reporting to Cognitive in writing any defect or error in, shortcoming of, and other problem with, the Site or a Product, (g) User’s compliance with all applicable law in connection with all matters for which User is responsible hereunder and User’s use of a Product, and (h) obtaining from any third party any required approval, authorization, consent, license, permission and permit to use the Site or a Product as contemplated herein.
8. Right to Monitor
Cognitive may monitor User’s use of a Product to confirm that User is complying with User’s obligations pursuant to this Agreement or for other legitimate commercial purposes; provided, however, that Cognitive has no obligation to do so and any such monitoring will be at Cognitive’s sole discretion. Cognitive will have no liability to User or any third party in connection with its monitoring (or not monitoring) such use.
9. Third-Party Sites
A Product may contain links to other websites that are not maintained by Cognitive. Cognitive is not responsible for any content contained on such other websites or otherwise with respect to such other websites. No link from a Product to another website, or from another website to a Product, is an endorsement, sponsorship or recommendation by Cognitive of such other website and the link is provided only for User’s convenience. Cognitive will have no responsibility or liability to User or any third party arising from any link between a Product and another website.
Cognitive may from time to time make available to User additional products and services relating to a Product through software that is made available on the Site, in an authorized app store or as otherwise authorized by Cognitive. All such products and services will be subject to the terms (including, but not limited to, price) made available to User at the time such products or services are acquired by User.
This Agreement shall be in effect as of the date User accepts the terms of this Agreement and continue in effect until the earlier of (a) User’s permanently terminating its use of a Product or User’s account with Cognitive or (b) Cognitive’s sending notice to User that User has failed to perform any obligation pursuant to this Agreement or any other obligation User has to Cognitive, whether pursuant to contract, applicable law or otherwise. All provisions of this Agreement that, by their nature, are intended to survive termination of this Agreement shall survive any such termination and may be enforced by a party at any time after such termination, subject only to any applicable statute of limitations.
User shall indemnify, defend and hold harmless Cognitive from all costs, damages, expenses, fines, liabilities, losses, penalties and other payments (including, but not limited to, fees and disbursements of counsel to Cognitive) resulting from, or relating to, (a) User’s failure to perform any obligation or assume any responsibility pursuant to this Agreement, (b) any warranty or representation made by User in this Agreement being untrue or misleading in any respect, (c) any unauthorized use of a Product by User, (d) any unauthorized use by a third-party of User’s account, user name or password, except as set forth in Section 4, (e) any products, services or content of Third-Party Vendors, or (f) except to the extent Cognitive is grossly negligent or engages in intentional misconduct, any action taken, or not taken, by User or any third party in reliance on a Product or any other use of a Product.
UNLESS USER PURCHASED A PRODUCT DIRECTLY FROM COGNITIVE OR AN AUTHORIZED DEALER OF COGNITIVE, SUCH PRODUCT IS MADE AVAILABLE TO USER “AS IS” AND WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS OR IMPLIED, (INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). IF USER PURCHASED A PRODUCT DIRECTLY FROM COGNITIVE OR AN AUTHORIZED DEALER OF COGNITIVE, COGNITIVE WARRANTS SUCH PRODUCT ONLY AS EXPRESSLY SET FORTH IN THE TERMS OF SALE APPLICABLE TO SUCH PRODUCT.
Some jurisdictions do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to User.
14. Limitation of Liability
COGNITIVE WILL NOT BE LIABLE TO USER OR ANY THIRD PARTY WITH RESPECT TO A PRODUCT, THE SITE, THIS AGREEMENT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGE TO, OR LOSS OF, PROPERTY). EXCEPT ONLY IN THE CASE OF ANY GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY COGNITIVE, IN NO EVENT WILL ANY LIABILITY OF COGNITIVE WITH RESPECT TO SOFTWARE, A PRODUCT, THE SITE, THIS AGREEMENT OR OTHERWISE EXCEED THE LESSER OF (A) ALL DIRECT DAMAGES ACTUALLY INCURRED BY USER OR (B) THE TOTAL AMOUNT PAID BY USER TO COGNITIVE FOR A PRODUCT (NOT INCLUDING ANY CHARGES FOR SHIPPING). THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF ANY THEORY OF LIABILITY (INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT), EVEN IF THE POSSIBILITY OF ANY DAMAGES SHOULD HAVE BEEN FORESEEN BY COGNITIVE, AND EVEN IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
Some jurisdictions do not allow the limitations or exclusions of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to User.
User may not export or re-export, whether directly or indirectly, any Product or any technical information relating to a Product (including, but not limited to, Software) from Canada or the United States, as applicable, to any other country without complying with all applicable law.
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If, however, any such provision is prohibited by or invalid under such law, it will be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it will be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder of such provision, or any other provision of this Agreement, being prohibited or invalid.
This Agreement will not be amended by any conduct pursued by the parties or any third party, but may only be amended in a writing signed by Cognitive and User or as otherwise set forth herein. Any terms relating to the use of a Product after the effective date of this Agreement may be unilaterally amended by Cognitive, in its sole discretion, at any time and such amendment will apply to all use of such Product after the date of such amendment.
18. Dispute Resolution
This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of the Province of Ontario, without regard to its principles of conflict of laws. Any complaint of User relating to a Product or this Agreement must first be submitted to Cognitive as set forth in Section 19, and Cognitive must be given a reasonable opportunity of not less than 30 days to investigate and respond to such complaint. Upon Cognitive’s completing such investigation and so responding, User and Cognitive must then attempt, in good faith, to promptly resolve any remaining aspects of such complaint. If any aspect of such complaint remains unresolved after a reasonable period of time of not less than 30 days, and User desires to pursue other remedies, User may, within one year after Cognitive received User’s initial complaint, commence litigation against Cognitive in connection with the unresolved portion of such complaint only in a court located in a county in the United States in which Cognitive has a place of business (or if there is no such county, in any state of the United States in which Cognitive has qualified as a foreign corporation to do business) and having subject matter jurisdiction over such complaint. User consents to any such court being a proper venue for such complaint, and waives any right to object to such court being an improper venue, whether for inconvenience or otherwise. If any such complaint is submitted to a court as set forth herein, User (a) waives any right User may have to a jury trial, (b) consents to all findings of fact being determined by the presiding judge, (c) waives any right to bring or join any claim against Cognitive as a member or other participant in any class action or other similar form of litigation, and (d) disclaims the applicability of the United Nations Convention on Contracts for the International Sale of Goods to any use of a Product pursuant to this Agreement.
User must send all notices to Cognitive relating to a Product or this Agreement at 560 Westmount Road North, Waterloo, Ontario N2L 0A9. Any such notice will be effective upon actual receipt by Cognitive. Cognitive may send notices to User through e-mail, regular mail or a general posting on the Site. Any such notice will be effective (a) immediately upon Cognitive’s sending such notice to the address it has in its records for User in the case of e-mail, (b) five days after Cognitive’s sending such notice to the address it has in its records for User in the case of regular mail, and (c) immediately upon User’s entering the Site after such notice is posted on the Site.
No failure of Cognitive to exercise, and no delay by Cognitive in exercising, any right or remedy under this Agreement shall be a waiver of such right or remedy. No waiver of any such right or remedy shall be effective unless made in a writing signed by Cognitive, and specifically referring to each such right or remedy being waived.
21. Equitable Remedies
User acknowledges that a remedy at law will be inadequate if User violates any provision of Section 2, 5, 7, 8, 11, 15, 18, 21, 22 or 23, and if Cognitive reasonably believes User has violated any such provision, consents to Cognitive’s obtaining from a court having jurisdiction an injunction, a restraining order, specific performance or other equitable remedy against User. The right of Cognitive to obtain any such equitable remedy shall be in addition to, and not in lieu of, each other right or remedy available to Cognitive under this Agreement or any applicable law.
22. Third-Party Beneficiaries
There are no third-party beneficiaries of this Agreement, and no provision of this Agreement can be enforced or relied upon by any third party.
This Agreement (a) inures to the benefit of, and is binding upon, User and Cognitive and each of User’s and Cognitive’s successors and assignees, except that User may not assign any of User’s rights or obligations under this Agreement without first obtaining the written consent of Cognitive, and (b) constitutes the entire agreement between User and Cognitive with respect to the subject matter of this Agreement, and supersedes all prior oral and written proposals, representations, understandings and agreements. Any attempt by User to assign to a third party any right or remedy hereunder will be null and of no effect. Cognitive may, in its sole discretion, assign or otherwise transfer this Agreement to a third party (including, but not limited to, an affiliate of Cognitive). To the extent there is any conflict or inconsistency between any provision of this Agreement and any provision contained on the Site (not including the Terms of Sale), the former will control.
User represents and warrants to Cognitive that User (1) has carefully read this Agreement, (2) is entering into this Agreement on User’s own behalf, and (3) has sufficient capacity to enter into this Agreement.
After reading this Agreement carefully, User must check the appropriate box to accept the terms of this Agreement. If User does not accept such terms by checking the appropriate box, User will not be able to use a Product.