HUBITAT SERVICES AGREEMENT
This Hubitat Service Agreement (the “Agreement”) is made by and between Hubitat, Inc., a Delaware corporation, (“Hubitat”) and the Customer on the effective date indicated on the order (the “Effective Date”). Hubitat and the Customer are from time to time collectively referred to in this Agreement as the “parties.”
WHEREAS, Hubitat has developed an automated home management system (“System”) that uses a hardware hub that connects devices on a home automation network (the “Hub”) and provides software based services (the “Software” (as defined below) and collectively with the Hub, “Hubitat Platform”), and the Customer desires to use such Hubitat Platform.
NOW, THEREFORE, in consideration of the promises set forth herein, the parties agree as follows:
1. Hubitat Platform.
a. Hubitat grants to Customer a limited, non-transferable, non- exclusive, non-assignable, revocable right to access and use the Software for Customer’s own personal use through the expiration or termination of the Agreement. The Software shall be made available to Customer as a service that Customer may access and use for the Term (as defined below) of the Agreement. “Software” means the object code form of the computer programs provided with the Hub and made available by Hubitat for license to Customer including firmware, and any copies made, bug fixes for, updates to, or upgrades thereof, at Hubitat’s sole discretion. Other than as specifically set forth above and unless otherwise agreed to by Hubitat in writing, no provision under this Agreement shall obligate Hubitat to deliver or otherwise make available any copies of computer programs or code from the Software to Customer, whether in object code or source code form.
b. Hubitat shall provide Customer with a Hub for personal use only. Customer shall be solely responsible for installation of the Hub, and for any and all costs associated therewith. Customer acknowledges and agrees that Customer shall not take apart, remove any portion, reverse engineer or otherwise tamper with or destroy the Hub. Hubitat shall not be liable for any damage or losses arising from defective installation of the Hub.
c. Customer acknowledges that the Hubitat Platform is under continuous development, is not complete or otherwise at the final stage of development and that Hubitat makes no representation that the Hubitat Platform is error or bug free. Customer acknowledges and agrees that the Hubitat Platform may experience unscheduled downtime and agrees that Hubitat shall not be liable for any harm resulting from unscheduled downtime. Customer acknowledges that Hubitat has no obligation to provide support for the Customer's use of the product.
2. Third Party Services. Customer acknowledges that the Hubitat Platform may aggregate or utilize the services of third parties (such third parties, “Third Parties,” and such services, “Third Party Services”). Hubitat shall not be liable for any actions of any Third Party or otherwise related to any Third Party Services, and Customer shall be responsible at all times for complying with any terms and conditions of the Third Party Services. Customer agrees to hold Hubitat harmless from and against any liability resulting from Customer’s use of, or inability to use, a Third Party Service. Hubitat may block the use of, restrict, disallow or terminate any third party service in its sole discretion. Hubitat disclaims any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to the availability, use or results from using any Third Party Service.
3. Ownership of Hubitat Intellectual Property. Hubitat shall at all times remain the sole owner and retain all right, title and interest in and to the Hubitat Platform, any copyrights, trademarks, trade names, or other intellectual property of Hubitat’s and any other intellectual property which is a part of the Hubitat Platform or which otherwise is provided by Hubitat to Customer during the Term of this Agreement (collectively, the “Hubitat Intellectual Property”). Customer shall not offer, loan, encumber, sell, or otherwise transfer the Hubitat Intellectual Property to any third party. No license or other right of any kind is granted by Hubitat’s furnishing of the Hubitat Platform, except for the limited rights as expressly provided in this Agreement.
4. Customer Intellectual Property. Customer shall be permitted to create its own derivative software from the Software for its own personal use (the "Customer Software"). "Customer Software" means any and all software that the Customer writes, designs and develops to supplement Customer's use of the Software that does not include the Software, including Apps and Drivers installed on a hub in source code form. Hubitat does not claim any ownership over Customer Software. The foregoing notwithstanding, the Customer acknowledges that the Customer may not assign, sublease, distribute, share or otherwise make the Customer Software available to third parties for commercial purposes; provided, however, that Customer may distribute and share Customer Software for non-commercial purposes for no compensation. Hubitat shall have no backup, improvement, maintenance, support or other obligations whatsoever with respect to the Customer Software, and Hubitat shall not be responsible for Customer's ongoing ability to use any Customer Software upon the termination of this Agreement.
5. Default, Disconnection and Remedies. Customer will be in default and breach of this Agreement if Customer (1) uses abusive, derogatory, insulting, threatening, harassing, vulgar or similarly unreasonable language or behavior directed at any of Hubitat’s employees, representatives or contractors whether it be in person, over the phone, or in writing; (2) or Customer’s use of the System or Hubitat Platform: (i) is harmful to, interferes with, or may adversely affect the Hubitat Platform, (ii) infringes on the intellectual property rights of Hubitat or others, (iii) results in threatening, offensive or illegal material, or (iv) includes a security risk or a violation of privacy of any third party; or (3) fails to perform other obligations as set forth in this Agreement. In the event of a default, Hubitat may, after providing the Customer five (5) calendar days advanced notice, terminate or suspend the Customer’s use of the Hubitat Platform. Customer agrees that once Customer receives notice from Hubitat that his/her use of the Hubitat Platform has been suspended or terminated for any reason, or otherwise becomes aware that his/her use of the Hubitat Platform has been suspended or terminated for any reason, that Hubitat can be in no way liable to Customer for any real or personal property damage or loss or negative impact to Customer’s well-being that occurs while the Customer’s use of the Hubitat Platform is suspended or terminated.
6. Privacy. Hubitat will use commercially reasonable efforts to maintain the privacy of Customer’s information. Customer understands that Hubitat cannot guarantee privacy and agrees not to hold Hubitat liable for any claims, loss, damages, or costs that may result from loss of privacy. As part of providing customer assistance, Hubitat may need to collect and share personal data that relates to Customer’s use of the Hubitat Platform, including access to information stored on the Hub. Customer understands and agrees that Hubitat may share information, including personal information such as Customer’s name, address, contact numbers, and recordings of calls, as Hubitat reasonably believes is necessary or would be helpful in providing Customer with assistance. Customer consents to Hubitat contacting him/her at the mailing address, email address and phone number(s) Customer provides for any purpose related to this Agreement using any method, including automated technology, prerecorded messages or text messages. If Customer’s wireless provider charges Customer for text or email messages, Customer is responsible for any such charges. Customer consents to the recording of all communications between the Customer and Hubitat.
7. Warranties. CUSTOMER ACKNOWLEDGES THAT THE HUBITAT PLATFORM IS NOT FULLY DEVELOPED AND MAY HAVE ERRORS OR DEFECTS. HUBITAT DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PROVIDE THE SPECIFIED SERVICE. CUSTOMER UNDERSTANDS THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FACE OF THIS AGREEMENT AND ACKNOWLEDGES THAT HUBITAT HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ABOUT THE CONDITION OF THE HUBITAT SYSTEM OR HUBITAT PLATFORM, THEIR MERCHANTABILITY, OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE, OTHER THAN THOSE EXPRESSLY CONTAINED IN THIS AGREEMENT. CUSTOMER ALSO UNDERSTANDS THAT IF HUBITAT IS DETERMINED TO BE DIRECTLY OR INDIRECTLY LIABLE FOR ANY LOSS, DAMAGE, OR INJURY THAT THE $100 LIMIT OF LIABILITY IN SECTION 8 APPLIES. THE FOREGOING NOTWITHSTANDING, FOR A PERIOD OF 90 DAYS FROM PURCHASE, HUBITAT WARRANTS THAT THE HUB WILL BE FREE FROM DEFECT IN MATERIAL AND WORKMANSHIP. HUBITAT’S SOLE OBLIGATION AND THE CUSTOMER’S SOLE REMEDY SHALL BE LIMITED TO REPLACEMENT OF THE DEFECTIVE HUB. REPLACEMENT MAY CONSTITUTE, AT HUBITAT’S OPTION A NEW, REFURBISHED OR FUNCTIONALLY EQUIVALENT ITEM. HUBITAT WILL NOT REIMBURSE THE HUB PURCHASE PRICE, IN ANY CASE, OR FOR ANY REASON.
8. Limitation of Liability. HUBITAT SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO CUSTOMER, CUSTOMER’S HOME OR PROPERTY, ANY THIRD PARTY OR THE HOME OR PROPERTY OF ANY THIRD PARTY CAUSED BY THE HUBITAT PLATFORM, THE HUBITAT INTELLECTUAL PROPERTY OR BY HUBITAT’S PERFORMANCE OF THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER UNDERSTANDS AND AGREES THAT IF HUBITAT SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE HUBITAT’S NEGLIGENCE OF ANY KIND OR DEGREE, FAILURE TO PERFORM ANY OF THE OBLIGATIONS IN THIS AGREEMENT, VIOLATION OF ANY APPLICABLE LAW (INCLUDING CONSUMER PROTECTION LAWS), OR FAILURE OF THE HUBITAT PLATFORM IN ANY RESPECT WHATSOEVER, HUBITAT’S LIABILITY SHALL BE LIMITED TO THE SUM OF ONE HUNDRED DOLLARS ($100) AND THIS LIABILITY SHALL BE HUBITAT’S SOLE AND EXCLUSIVE LIABILITY. HUBITAT SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF THE HUBITAT PLATFORM, THE HUBITAT PROPERTY OR ANY OF HUBITAT’S PERFORMANCE OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES WHATSOEVER TO THE HOME OR PROPERTY OF CUSTOMER OR ANY THIRD PARTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT HUBITAT IS NOT AN INSURER AND THAT CUSTOMER ASSUMES ALL RISK OF PERSONAL INJURY AND LOSS OR DAMAGE TO CUSTOMER’S PREMISES OR TO THE CONTENTS THEREOF. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT IF ANY INSURANCE IS DESIRED, CUSTOMER MUST OBTAIN IT. NOTWITHSTANDING THE FOREGOING, THIS SECTION 8 SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF HUBITAT, OR ANY GROSS NEGLIGENCE OF HUBITAT IN THOSE STATES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
9. Term. The term of this Agreement shall be perpetual (the “Term”).
10. Termination. Hubitat may terminate this Agreement at any time for customer breach. Upon termination of this Agreement, Customer shall no longer access the Hubitat Platform or the information provided therein. The obligations set forth in Sections 3, 7, 8 and 11 through 18 shall survive the termination of this Agreement.
11. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements with respect to such subject matter. This Agreement may be modified only by a writing that is duly executed by both parties.
12. Governing Law. This Agreement is to be governed by, construed and enforced according to the laws of the State of Delaware.
13. ARBITRATION/WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HUBITAT AND THE CUSTOMER BOTH GIVE UP THEIR RIGHT TO A JURY TRIAL OR BENCH TRIAL AND, INSTEAD, AGREE TO RESOLVE THROUGH BINDING ARBITRATION ALL CLAIMS, DISPUTES, OR LAWSUITS (COLLECTIVELY “CLAIMS”), REGARDLESS OF THEIR NATURE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SYSTEM OR ANY OTHER BUSINESS RELATIONSHIP BETWEEN THE PARTIES. THIS BINDING ARBITRATION IS MANDATORY, NOT PERMISSIVE. THE PARTIES AGREE THAT ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL RULES OF THE FEDERAL ARBITRATION ACT (FAA). ARBITRATION OR ANY RELATED LITIGATION WILL TAKE PLACE IN THE STATE AND COUNTY WHERE THE CUSTOMER RESIDES, UNLESS BOTH PARTIES AGREE TO A DIFFERENT LOCATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HUBITAT AND CUSTOMER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN HIS/HER OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION, WHETHER BY WAY OF A CLASS ACTION LAWSUIT, CLASS WIDE ARBITRATION OR PRIVATE ATTORNEY GENERAL ACTION. FURTHER, UNLESS HUBITAT AND THE CUSTOMER OTHERWISE AGREE IN WRITING, NO ARBITRATOR OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. FURTHER, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HUBITAT AND THE CUSTOMER BOTH GIVE UP ANY RIGHT TO MAKE A CLAIM FOR PUNITIVE DAMAGES OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER. THE ARBITRATION PROCEEDINGS, INCLUDING DECISIONS AND AWARDS, SHALL BE HELD IN CONFIDENCE BY BOTH PARTIES.
14. Assignment. Hubitat has the right to assign its rights and obligations under this agreement. Customer may not assign this Agreement without the prior written consent of Hubitat. This Agreement shall be binding upon and inure to the benefit of the parties and their respective administrators, successors and assigns.
15. Interpretation. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. The parties desire that this Agreement be construed fairly, according to their terms, in plain English, without constructive presumptions against the drafting party. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Execution and delivery of the Agreement may be evidenced by facsimile or other electronic means. If any provision or part of a provision in this Agreement is held to be illegal, invalid, or unenforceable by a court or other decision making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provisions in this Agreement will not be affected or impaired.
16. Independent Contractors. The parties acknowledge and agree that they are dealing with each other as independent contractors. Neither this Agreement, nor any terms and conditions contained in this Agreement may be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency between Hubitat and Customer. Neither Hubitat nor Customer may bind the other in contracts with third parties or make promises or representations on behalf of the other party without a signed written consent, and employees and agents of one party are not for any purpose employees or agents of the other.
17. No Third-Party Beneficiaries. This Agreement is made for the benefit of Hubitat and Customer only, and the Agreement is not for the benefit of, and was not created for the benefit of, any third parties.
18. Notices. All notices, requests and other communications called for by this Agreement must be deemed to have been given immediately if made by email to the other party at the addresses set forth below or to such other addresses as either party may specify to the other in writing. Notice by any other means will be deemed made when actually received by the party to which notice is provided.