User's Manual

ECONOMIC LOSS) OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY LICENSEE
OR ANY THIRD PARTY HOWSOEVER CAUSED AND WHETHER RESULTING FROM
THE USE OF OR INABILITY TO USE THE SOFTWARE OR OTHERWISE (INCLUDING
AS A RESULT OF OR DUE TO USE OF OR RELIANCE ON THE SOFTWARE AND/OR
ecobee WEB PORTAL) AND REGARDLESS OF THE FORM OR CAUSE OF ACTION,
EVEN IF SUCH DAMAGES ARE FORESEEABLE OR ecobee HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. ECOBEE PARTIES’ TOTAL LIABILITY
AND OBLIGATION TO LICENSEE, IN THE AGGREGATE FOR ANY AND ALL CLAIMS
ARISING OUT OF OR IN ANY CONNECTION WITH THIS EULA, THE TERMS OF SALE
IN CONNECTION WITH YOUR PURCHASE OF THE PRODUCT AND YOUR USE OF
THE SOFTWARE AND PRODUCT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS,
INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR
THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE,
BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES
SUFFERED AND SHALL NOT EXCEED AN AMOUNT THAT IS EQUIVALENT TO THE
PURCHASE PRICE OF THE ecobee PRODUCT ACTUALLY PAID BY LICENSEE. THIS
SECTION SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES AND/OR
FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT.
13. Survival: The parties acknowledge and agree that the provisions of Sections 2, 6,
7, 9, 11(b), 12, 13, 14, 15, 16 and 17 shall survive any termination of this EULA for
any reason.
14. English Language: The parties declare that they have required that this agreement
and all documents related hereto, either present or future, be drawn up in the
English language only. Les parties déclarent par les présentes qu’elles exigent que
cette entente et tous les documents y aérents, soit pour le présent ou le futur,
soient rédigés en langue anglaise seulement.
15. Jurisdiction: This EULA shall be exclusively governed by, construed and interpreted
in accordance with the laws of the Province of Ontario, Canada. For the purpose
of all legal proceedings this EULA shall be deemed to have been performed in
the Province of Ontario, Canada and the parties expressly conrm that the law
of the Province of Ontario is the proper law. If Customer is located in a jurisdiction
other than Canada, the parties agree that neither the United Nations Convention
of the International Sale of Goods or the (U.S.) Uniform Computer Information
Transactions Act shall apply to this EULA. The parties irrevocably attorn to the non-
exclusive jurisdiction of the Courts of the Province of Ontario in respect of all matters
and disputes arising hereunder.
16. Export Law Assurances: LICENSEE acknowledges that the Software may be subject
to export and import control laws, and agrees to comply fully with those laws in
connection with the Software.
17. General Provisions: No delay or omission by ecobee to exercise any right
or power it has under this EULA or to object to the failure of any covenant of
62