END USER LICENSE AGREEMENT
By accessing and using the software (“Product Software”) that is embedded on the Orbit product (“Product”), you agree to the terms of this End User License Agreement (“EULA”) between you and Orbit Irrigation Products, Inc. (“Orbit” or “we”). IF YOU DO NOT AGREE WITH AND ACCEPT THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE AND YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING ORBIT AT THE ADDRESS BELOW. Your use of (a) the website located at bhyve.orbitonline.com (“Site”), (b) services accessible through the Site (and any updates thereto) (“Web Apps”), and (c) certain software that may be downloaded to your mobile device (and any updates thereto) (“Mobile Apps”) is governed by the Terms of Service available at bhyve.orbitonline.com\termsofservice. Your purchase of the Product (excluding the Product Software) is governed by the Limited Warranty, the terms of which are provided with the Product and available at bhyve.orbitonline.com\limitedwarranty. This EULA does not govern your use of the Site, Web Apps, or Mobile Apps, or your purchase of the Product (excluding the Product Software).
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 CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, SECTION 8 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 YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. License.
Subject to the terms of this EULA, Orbit grants 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 for the Product that you own and control and solely for use in conjunction with the Product for your personal, non-commercial purposes.
2. Restrictions
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 Orbit and provide Orbit 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 Orbit for each such release.
3. Automatic Software Updates.
Orbit 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 Orbit provides. Your continued use of the Product is your agreement to this EULA.
4. Ownership.
The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of Orbit and its licensors. Orbit 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 or feedback provided by you to Orbit with respect to the Product Software shall be Orbit’s property. Orbit may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Orbit does not waive any rights to use similar or related ideas previously known to Orbit, developed by its employees, or obtained from other sources.
5. Term and Termination.
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. Orbit may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to Orbit. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 16 (inclusive) will remain in effect, after any such termination.
6. Warranty Disclaimer.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ORBIT PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ORBIT DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. ORBIT MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.
YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND ORBIT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR LANDSCAPING, GARDENS, YARD, PLUMBING, HOME, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND IN YOUR HOME AND YARD, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.
7. Limitation of Liability
Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) ORBIT BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCT OR PRODUCT SOFTWARE, EVEN IF ORBIT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) ORBIT’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCT AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO ORBIT OR ORBIT’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. ORBIT DISCLAIMS ALL LIABILITY OF ANY KIND OF ORBIT’ LICENSORS AND SUPPLIERS.
8. Limitations of Product Software
Unless explicitly promising a “guarantee,” Orbit does not guarantee or promise any specific level of water savings, garden and lawn health, or other benefit from the use of the Product or Product Software or any feature of them. Actual water savings, garden and lawn health, and monetary benefits vary with factors beyond Orbit’s control or knowledge.
The Product Software provides you information (“Product Information”) regarding the Product in your home and its 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.
9. Confidentiality.
“Confidential Information” shall mean the Product Software and all other information disclosed to you that Orbit characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Orbit. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Orbit in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Orbit in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Orbit prior to such disclosure to allow Orbit an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Orbit in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
10. Export Compliance.
The Product Software and related technology are subject to U.S. export control laws and 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 Orbit 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.
11. Governing Law; Venue.
You agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of Utah, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Salt Lake County, Utah and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that Orbit may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
12. Assignment.
Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
13. Notices.
Any notice to you may be provided by email to the address that you registered with Orbit.
14. Severability.
If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
15. Waiver.
All waivers by Orbit will be effective only if in writing. Any waiver or failure by Orbit to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16. General.
The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. Orbit will have no responsibility to provide maintenance or support services with respect to the Product Software. The parties are independent contractors.
You acknowledge that the Product Software contains valuable trade secrets and proprietary information of Orbit, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to Orbit for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
The eula-headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.
Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.
Questions or Additional Information. If you have questions regarding this EULA, please contact Orbit at P.O. Box 328 Bountiful, Utah 84011; Toll Free: 800-488-6156.