IMPORTANT! Read carefully: This End User License Agreement (“EULA”) is a legal agreement between you as licensee and carbontrack (Aust) Pty Ltd (ACN 162 220 662) (“carbontrack,” or “us”or “we,” for software (“Product Software”) of the carbontrack product (“Product”).
By using the Product Software that is embedded on the Product, you agree to be bound by the terms of this EULA between you and us.
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 immediately 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 do 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 by using the product software you are acknowledging them and accepting them.
Subject to the terms of this EULA, carbontrack 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 purposes. You are not permitted to transfer your rights and/or obligations under the EULA unless you have the prior written consent of carbontrack.
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 carbontrack and provide carbontrack 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 carbontrack for each such release.
Your continued use of the Product is your agreement to these updates. Carbontrack 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 carbontrack provides.
You agree that carbontrack and its affiliates or suppliers may collect, use, monitor or sell to third parties, energy use data and other statistics on your use of the Software Product and Product itself and the information and data collected. Carbontrack agrees not to use this data and information in a form that personally identifies you except to the extent necessary to provide such services.
You do not acquire ownership of copyright, trade secrets or other intellectual property rights in any part of the Product Software by virtue of this EULA.
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of carbontrack and its licensors. carbonTRACK 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, feedback and/or submissions provided by you to carbontrack with respect to the Product Software shall be carbontracks’ property. Carbontrack may use, copy, modify, publish, or redistribute the feedback and/or suggestions and its contents for any purpose and in any way without any compensation to you. You also agree that carbontrack does not waive any rights to use similar or related ideas previously known to carbontrack, developed by its employees, or obtained from other sources.
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. Carbontrack may terminate this EULA at any time if you breach any term(s) of this EULA. You may terminate this EULA effective immediately upon written notice to carbontrack. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but all remaining terms of the EULA will remain in effect, after any such termination. Any termination of this EULA is without prejudice to any right, action, remedy which has accrued or which may accrue in favour of carbonTRACK.
Notwithstanding anything to the contrary and to the maximum extent permitted by law, carbontrack provides the product software “as-is” and excludes all warranties and conditions, whether express, implied, or statutory, including the warranties of merchantability, fitness for a particular purpose, reliability, title, quiet enjoyment, accuracy, meeting your or any other requirements and non-infringement of third-party rights. Carbontrack does not guarantee any specific results from the use of the product software. Carbontrack excludes all warranties that the product software will be uninterrupted, free of viruses or other harmful code, timely, secure, or error-free.
You agree to use all product information (as defined below), the product software, and the product at your own discretion and sole risk. You will be solely responsible for (and carbontrack excludes) any and all claims, loss, liability, or damages, and costs incurred or suffered by you including without limitation to your electrical system, solar electricity system, hvac system, lighting, plumbing, home, product, other peripherals connected directly of indirectly to the product, computer, mobile device, and all other items and pets in your home, resulting from your use or misuse or inability to use the product information, product software, or product.
Nothing in this eula excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term implied or imposed by legislation which cannot be lawfully excluded or limited (each a non excludable term). Such legislation includes the australian consumer law which contains guarantees that protect the purchasers of goods or services in certain circumstances. Subject to carbontrack’s obligations under the non excludable terms and to the fullest extent permissible by law, carbontrack expressly disclaims all warranties of any kind with respect to the product software and product, whether express, implied, statutory, or arising out of course of performance, course of dealing or usage of trade, including any warranties of merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non-infringement.
Subject to the obligations of carbontrack under the non excludable terms and to the fullest extent permissible by law , neither carbontrack or its subsidiaries, nor carbontrack’s suppliers will be liable (whether in contract, negligence or otherwise) to you or any third party;
(A) for any indirect, consequential, exemplary, punitive, special, or incidental damages, including any damages (whether direct or indirect) for lost data or lost revenue or profits, arising from or relating to the products or product software, even if carbontrack knew or should have known of the possibility of such damages,) or;
(B) for any indirect, consequential, exemplary, punitive, special, or incidental damages, including any damages (whether direct or indirect) in each case, arising out of the use or inability to use the product software or product, even if carbontrack has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of carbon track under the non-excludable terms and to the fullest extent permissible by law, in no event will carbontrack’s liability for all damages exceed the amount actually paid by you to carbontrack or carbontrack’s authorized reseller for the product software and product. To the fullest extent permitted by law, the liability of carbontrack for breach of a non-exclusive term is limited to:
1.) In the case of the supply of the product software or product
i. Replacement of the product software or product
ii. Supply of equivalent if available;
iii. Repair of the product software or product
iv. Payment of the cost of replacing the product software or product or
v. The payment of the cost of havingthe product software or product repaired
2) in the case of the provision of services:
i. The supplying of ther services again; or
ii. The payment of the cost of having the services supplied again.
This limitation is cumulative and will not be increased by the existence of more than one incident or claim. Carbontrack disclaims all liability of any kind of carbontracks’ licensors and suppliers.
You indemnify, defend and hold harmless carbontrack, its associated and related entities, agents, employees, officeholders and/or suppliers in respect of all actions, claims,proceedings,demands, liabilities, losses, damages, expenses and costs including legal fees on a full indemnity basis, in connection with any of the following:
(a) Any breach of this EULA by you;
(b) Your negligent acts or omissions; or
(c) Your use of the Product Software or Product, including any third party claims made in connection with, or arising out of, Your use of the Product Software or Product.
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 -- carbontrack does not monitor emergency notifications and will not dispatch emergency authorities to your home in the event of an emergency. In addition, the carbontrack 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,” carbontrack 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 carbontracks’ control or knowledge. From time to time, carbontrack 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 carbontrack 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.
The Product Software and related technology 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 carbontrack 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.
This EULA constitutes the entire Contract between you and carbontrack, unless otherwise expressly agreed to in writing by carbonTRACK.
In the event that a term of the EULA is declared or found to be illegal by any court, such term shall be read down, and should the term not be able to be read down, void with respect to the jurisdiction of that court or tribunal and all the remaining terms of the EULA shall remain in force and correct.
This Agreement is governed by and construed in accordance with the laws of the State of Victoria, Australia. In the event that a dispute arises from this EULA, you agree to submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
Carbontrack is a registered trade mark and any unauthorised reproduction, adaptation or modification thereof shall constitute trade mark infringement.
If you have any concerns about material which appears on our product or product software, please contact us at firstname.lastname@example.org.
Thank you for visiting www.carbontrack.com.au.