IMPORTANT – READ CAREFULLY: BY INSTALLING, AND/OR USING THE TAILWIND Smart Garage SOFTWARE (DEFINED BELOW), USER (YOU) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE.
TAILWIND Smart Garage
END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is hereby entered into and agreed upon by User, either an individual or an entity, and its Affiliates (“User” or “Company”) and 1931085 Ontario Ltd. DBA Tailwind, having its office at 12015 Crowland Avenue, Niagara Falls, Ontario, Canada, L3B 5N4 (“Tailwind”) for the Software.
1.1 “Affiliates” means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the terms and conditions of this Agreement, Affiliates may use the license granted hereunder. All references to Tailwind shall be deemed to be references to Tailwind and its Affiliates, and all references to Company, shall be deemed to be references to Company and its Affiliate(s).
1.2 "Smart device" means an electronic device, generally connected to other devices or networks via different wireless protocols such as Bluetooth, NFC, Wi-Fi, 3G, etc., that can operate to some extent interactively and autonomously.
1.3 “Documentation” means the official user documentation prepared and provided by Tailwind to User on the use of the Software. For the avoidance of doubt, unofficial documentation, videos, white papers, or related media; or feedback does not constitute Documentation.
1.4 “Software” means the object code versions of the product, together with the updates, new releases or versions, modifications or enhancements, in the Tailwind Smart Garage application owned and provided by Tailwind to User pursuant to this agreement.
2. GRANT OF LICENSE
2. Title - The Software is owned by Tailwind and will remain the sole and exclusive property thereof, including without limitation any copyright, trade-mark and patent rights in the Software.
2.2 Production License - Upon payment of the applicable fees for the Software and continuous compliance with the terms and conditions of this Agreement and the Documentation, Tailwind hereby grants User limited, worldwide, perpetual, nonexclusive, nontransferable license to use the object code of the Software and Documentation subject to the terms contained herein:
a) For each Software license key that User purchases from Tailwind, User may: (i) use the Software on any single mobile or smart device for a single Tailwind iQ3 Garage Door Controller Control Module, unless the Documentation clearly indicates otherwise; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices and a notice that it will not be used for transfer, distribution or sale.
b) The Software is in use on a Mobile or Smart device when it is loaded into temporary memory or installed in permanent memory (hard drive, CD-ROM or other storage device). User agrees to use reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care that User uses to protect Users’ own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. User agrees that User will register this Software only with Tailwind and that User will only install a Software license key obtained directly from Tailwind.
2.3 Software Evaluation License - If the Software is provided to User for evaluation purposes, Tailwind grants to User a nonexclusive, limited, royalty-free, nontransferable evaluation license to use the Software solely for evaluation prior to purchase (an “Evaluation License”). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from Tailwind at its sole discretion. Notwithstanding any other provision contained herein, Software provided pursuant to an Evaluation License is provided to User “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific Evaluation License terms set forth in this Section, all other terms of this End User License shall apply to Software licensed under an Evaluation License.
3. LICENSE RESTRICTIONS
3.1 User may not: (i) provide, make available to, or permit other individuals to use the Software or Documentation, except under the terms listed above, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code based upon the Software or Documentation; (iii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation (except for back- up or archival purposes, which will not be used for transfer, distribution, or sale); (iv) license, sell, rent, lease, transfer, sublicense, distribute, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) license the Software if User is a direct competitor of Tailwind for the purposes of monitoring the Software’s availability, performance, or functionality or for any other benchmarking or competitive purposes. Any such forbidden use shall immediately terminate User license to the Software. The Software is intended only for use with public domain or properly licensed third party materials. All responsibility for obtaining such a license is Users’, and Tailwind shall not be responsible for Users’ failure to do so.
3.2 Tailwind Trademarks - User may not delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the company name of Tailwind, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the company name or mark “Tailwind” or any of its Affiliates’ names or marks must remain as originally distributed regardless of the presence or absence of a trademark, copyright, or other intellectual property symbol or notice.
3.3 Export Restrictions - The Software and Documentation delivered to User under this Agreement are subject to Canadian export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside Canada. User shall abide by all applicable export control laws, rules and regulations applicable to the Software and Documentation. User agrees that User will not export, re-export, or transfer the Software or Documentation, in whole or in part, to any country, person, or entity subject to Canadian export restrictions. User specifically agree not to export, re-export, or transfer the Software or Documentation (i) to any country to which Canada has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who User knows or has reason to know will utilize the Software or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in Canadian export transactions by any agency of the Canadian government.
3.4 Compliance with Applicable Laws. The Software and Documentation are protected by the intellectual property laws and other laws of Canada and international laws and treaties, including intellectual property laws. User agrees that User shall use the Software and Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which User use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
4. RIGHTS RESERVED
THE SOFTWARE IS LICENSED, NOT SOLD. Use herein of the word “purchase” in conjunction with licenses, license keys, or the Software shall not imply a transfer of ownership. Unless as conveyed herein, this Agreement does not grant User any rights, title, or interest in or to Software, Documentation, trademarks, service marks, or trade secrets, or corresponding intellectual property (including without limitation any images, photographs, animations, video, audio, music, and text incorporated into the Software, the accompanying printed materials, and any copies of the Software) of Tailwind or its suppliers, and all rights, title, and interest in and to the Software, Documentation, and corresponding intellectual property shall remain the property of Tailwind, its suppliers, or are publicly available. All rights not expressly granted under this Agreement are reserved by Tailwind, its suppliers, or third parties. All title, rights, and interest in and to content, which may be accessed through the Software, is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives User no rights to such content, including use of the same. Tailwind agrees that the data and information (including without limitation, smart device software, smart device database, smart device software documentation, specifications, design drawings, reports, blueprints, and the like) generated by the Software from User proprietary data and information shall be and remain User sole property.
5.1 "Confidential Information" means any nonpublic or proprietary information, in tangible or intangible form, that a party to this Agreement (“Disclosing Party”) designates as being confidential by legends or other markings or in a separate writing provided contemporaneous with the disclosure to the party that receives such information (“Receiving Party”). Confidential Information includes the Software, Documentation and any other intellectual property or proprietary rights thereto. Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality; or (iv) is independently developed by Receiving Party without reference to or use of the Confidential Information.
5.2 Protection - Receiving Party may use Confidential Information of Disclosing Party; (a) to exercise its rights and perform its obligations under this EULA; or (b) in connection with the parties’ ongoing business relationship. Receiving Party will not use any Confidential Information of Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Receiving Party’s duty hereunder. Receiving Party will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The parties will each be responsible for any breach of this Agreement by their consultants or agents and each party agrees to take all reasonable measures to restrain its consultants or agents from disclosure or improper use of the other party’s Confidential Information. Confidential Information shall remain at all times the property of the Disclosing Party. No rights to use, license or otherwise exploit the Confidential Information are granted to the Receiving Party or its agents, by implication or otherwise.
5.3 Data Rights - User agrees that Tailwind will collect and track technical and related information about User and Users’ use of the Software, which may include Users’ internet protocol address, hardware identifying information, operating system, Tailwind application software, peripheral hardware, and Software usage statistics, to assist with the operation and function of the Software, the provision of updates, support, invoicing, and research and development.
6. LIMITED WARRANTY
Tailwind warrants to User that for a period of 1 year following the initial purchase and delivery of the Software to User that the Software will perform substantially in conformance with the Documentation. Tailwind does not warrant that the Software will meet all of Users’ requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) Software that is modified or altered by User or any third party that is not authorized by Tailwind; (ii) Software that is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; or (iii) failures that are caused by other software or hardware products. To the maximum extent permitted under applicable law, as Tailwinds’ and its suppliers’ entire liability, and as User exclusive remedy for any breach of the foregoing warranty, Tailwind will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if Tailwinds unable to repair or replace the Software, refund to User the applicable license fees paid upon return, if applicable, of the nonconforming item to Tailwind. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software under this limited warranty will be warranted for1 year from the original purchase date.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TAILWIND IS PROVIDING AND LICENSING THE SOFTWARE TO USER "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TAILWIND, ITS DIRECTORS, OFFICERS, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE TO USER (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, OR OTHER ECONOMIC DAMAGE , ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF TAILWIND OR A DEALER AUTHORIZED BY TAILWIND HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Software enables a user to control / monitor their garage door(s) over the internet. User understands and agrees that there are risks associated with this. User shall bear all risks associated with the use of the Software. Tailwind, its directors, officers, agents, partners and licensors shall not be liable to User for any loss or damage of any kind, including but not limited to, personal or bodily injury (including death or disability) or property damage.
The Software has auto-open / auto-close features that depend on the User’s smart device, GPS, wireless carrier signal, the internet, and Bluetooth signals. These features are designed to automatically open the garage door as the user comes home, and close it as they drive away. User understands and agrees that he should not rely on this auto-close feature every time he drives away since it can occasionally fail due to loss of connectivity. Tailwind, its directors, officers, agents, partners and licensors shall not be liable to User for any loss or damage of any kind arising out of or relating to the auto-open / auto close features or third party services or products.
8. THIRD PARTY PROGRAMS
To the extent the Software is bundled with third party software programs; these third party software programs are governed by their own license terms, which may include open source or free software licenses. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede the terms of any such third party software.
9. CHOICE OF LAW AND VENUE
This Agreement shall be governed by the laws of the Province of Ontario and of Canada, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. User hereby consents to the exclusive jurisdiction of the Superior Court of Justice in Toronto, Ontario Canada, and that court shall be the exclusive forum for any dispute arising out of this Agreement or the performance of the obligations hereunder.
10. COUNTERPARTS AND FACSIMILE SIGNATURE
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The Parties may exchange signature pages by facsimile and such signatures shall be effective to bind the Parties.
11. COMPLETE AGREEMENT
This Agreement along with any addendums constitute the entire agreement between the Parties and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof including without limitation the terms of any party or any purchase order issued in connection with this Agreement. If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions. This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each party.
It is intended that all provisions of this Agreement are fully binding and effective between the parties, but in the event that any particular provision or provisions or a part of one is found to be void, voidable or unenforceable for any reason whatsoever, then the particular provision or provisions are deemed severed from the remainder of this Agreement and all other provisions remain in full force and effect.
13. TERM AND TERMINATION
This Agreement is effective until terminated by User or Tailwind. User’s rights under this Agreement shall terminate immediately upon breach of the Agreement by User. In the event that Tailwind becomes aware of any claim, lawsuit, action, allegation, proceeding or suit against Tailwind, or any of their business partners, affiliates, employees or contractors in respect of the Software and content provided in respect of the Software, Tailwind shall have the right, at its sole discretion, to either: a) terminate this Agreement and return the license fee to User; or b) provide User with replacement Software that is non-infringing. User agrees, upon termination, to destroy the Software and accompanying written materials, together with all copies of the Software.
14. EXPORT LICENSING NOTIFICATION
The products delivered hereunder are subject to the export licensing regulations of the Republic of Canada. User will comply with such regulations in its use of the Software. User is solely responsible for obtaining any and all required government authorizations, including without limitation, any export or import licenses and foreign exchange permits.
If any part of this EULA is found invalid, such invalidity will not affect the validity of remaining portions of this EULA, and the parties will promptly substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision. Failure by a party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of the duration of such default, will not constitute a waiver of rights hereunder. This EULA will be interpreted solely in the English language, and no translation into any foreign language will have any effect.