Terms & Conditions
NoiseAware Solution User License Agreement
This Agreement shall govern your use of the NoiseAware products, including the firmware, software as a service delivered via NoiseAware’s applications (collectively “Software”), hardware devices (“Hardware”), and other related services along with any third-party software or service contained therein (the “Solution”), provided by NoiseAware Inc. (“NoiseAware”). This is a legal agreement between you and NoiseAware. Installing, using, or accessing the Solution or any part thereof means you agree to these terms, so please read them carefully. For the avoidance of doubt, “you”, “your” and other pronouns used to reference the user of the Solution under this Agreement shall include you to the extent you are an individual and your company to the extent you are using it on behalf of an entity. Please ensure that you have the authority to use the Solution and bind your company, if applicable, prior to entering into this Agreement as set forth below.
If you are under the age of 18, you are not permitted to use the Solution or provide your personal information to NoiseAware without the consent of your parent or guardian who must first accept this Agreement and administer the Solution on your behalf.
- By clicking an acceptance button, installing, accessing and/or using the Solution, you agree unconditionally to be bound by this Agreement and acknowledge that it is enforceable as a written contract signed by you. If you do not unconditionally agree to all of these terms, do not install, use, or access this Solution. To the extent any translated version of this Agreement conflicts with the English version, the English version controls. NOISEAWARE MAY MODIFY THIS AGREEMENT, INCLUDING THE CONFIDENTIAL ARBITRATION AND DISPUTE RESOLUTION PROVISION BELOW, FROM TIME TO TIME AT NOISEAWARE’S SOLE DISCRETION FOR ANY REASON, AND SUCH MODIFICATIONS WILL BE EFFECTIVE UPON YOUR NEXT USE OF THE SOLUTION. If NoiseAware makes material changes to this Agreement, such changes will be effective only prospectively until NoiseAware communicates with you via the contact information you provided (or through other means) and gives you an opportunity to review and accept or reject the updated Agreement within 30 days. It is very important that you keep your account information, including email address and other contact information, current. If you do not agree to the Agreement as amended, then you may continue to use the version of the Solution you purchased for the current term of the Agreement, but you may not update the Solution or renew the Agreement. If you withdraw your acceptance of this Agreement, you will need to uninstall and discontinue your use of the Software and return the Hardware to NoiseAware at that time unless you have paid a separate and distinct Hardware fee in which case you shall own the Hardware and have no obligation to return.
- NoiseAware hereby grants you a nonexclusive, nontransferable, revocable, limited license to install the Solution for use in accordance with the terms and conditions of this Agreement. This license is limited to monitoring the number of NoiseAware Hardware devices you have purchased. NoiseAware, along with NoiseAware’s suppliers and partners, retain ownership of our respective Solution and all rights related to the Solution, including all intellectual property rights. The only rights NoiseAware grants you are those rights expressly stated in this Agreement. Also, if you provide NoiseAware any comments, information, opinions, or suggestions, which NoiseAware considers “Feedback,” you allow NoiseAware to use your Feedback without restriction, for any purpose and without compensation to you. Your use of the Solution is limited to devices, operating systems, and browsers NoiseAware supports and may be affected by the performance and compatibility of your hardware, software and Internet access. Meeting system requirements on NoiseAware’s website or in the documentation is your responsibility and you are responsible for the cost of your equipment, which may include obtaining updates or upgrades from time to time in order to continue using the Solution.
- This Agreement is effective for the subscription term you purchased unless terminated earlier as permitted below. For paid versions of the Solution, if no term was specified, the default term is one year from the date you first acquired the Solution. For any versions of the Solution and any feature therein that NoiseAware gives you for free, at no charge, on a trial, on courtesy or evaluation basis, or that is labeled as “Beta” or otherwise described as experimental, untested, or not fully functional (“Trial Feature”), this Agreement is effective for as long as NoiseAware makes the Solution available to you, if no term was specified. NoiseAware may terminate this Agreement at NoiseAware’s option if you fail to comply with its terms and conditions. You may also terminate this Agreement prior to the expiration of the term by permanently erasing the Software from your devices, returning the Hardware (or in the case you paid a separate and distinct Hardware fee then you have no obligation to return Hardware) and canceling your account with NoiseAware verbally or in writing and with confirmation from a representative of NoiseAware. If this Agreement terminates or expires, you must stop using the Software (including any internet based services), you must permanently erase all copies of the Software on your devices to the extent you can, you must return the Hardware (or in the case you paid a separate and distinct Hardware fee then you have no obligation to return Hardware), and NoiseAware may cancel and/or close your account at NoiseAware’s sole discretion. If the Solution includes any Trial Feature, then this section of the Agreement applies and controls. All Trial Features are provided as is, without any warranty, indemnity, updates, maintenance or support, express or implied, subject to any statutory rights that cannot be excluded or limited by law. You acknowledge that the Trial Features may contain bugs, errors and other problems that could cause system or other failures and data loss, and use is at your own risk. You acknowledge that NoiseAware: (i) has not promised or guaranteed to you that Trial Features, or similar or compatible products will be announced or made available to anyone in the future, and (ii) has no express or implied obligation to do so.
- Automatic Renewal, Cancellation and Refund. You agree to allow NoiseAware to automatically renew your paid subscription to the Solution and any support services, so that NoiseAware can prevent an interruption in your service. When your term is close to expiring, NoiseAware will send notices to the e-mail address you provided when you subscribed, informing you of the upcoming renewal. You will be charged the retail price for the Solution as listed on NoiseAware’s website at the time of renewal, excluding any promotional or discount pricing, and NoiseAware will send you a receipt confirming the renewal date, price, term and any applicable taxes. If, at the time of renewal, the Solution has been renamed, upgraded or replaced with a new product offering with comparable features (“Replacement”), NoiseAware may, at its sole discretion, automatically renew your subscription with the Replacement for no more than the undiscounted retail price of your original subscription, plus any applicable tax. FURTHERMORE, UPON TERMINATION, CANCELLATION OR EXPIRATION HEREOF, YOU MUST RETURN THE HARDWARE PORTION OF THE SOLUTION TO NOISEAWARE IN GOOD WORKING ORDER OR PAY A FEE OF $200 USD PER DEVICE, PROVIDED THAT WHERE YOU PAID A SEPARATE AND DISTINCT HARDWARE FEE THEN YOU HAVE NO OBLIGATION TO RETURN THE HARDWARE TO NOISEAWARE.
Upon renewal, the new term will be the same length as the expired term unless otherwise specified by NoiseAware at the time of renewal. For subscriptions of one year or more, the renewal and your payment will be processed within 30 days of the current term expiration date and each anniversary thereafter. NoiseAware will inform you of your account status and any changes to the terms and conditions of your subscription in accordance with local law.
Any time after purchasing a subscription, you may change your automatic renewal settings by contacting customer service. If you do not wish to be automatically renewed, you must turn off or cancel auto-renewal at least thirty days before your subscription expires.
For paid subscriptions other than monthly, you may end your use of the Solution at any time and NoiseAware will offer a refund (for the current term only) if requested within 60 days of purchase or renewal by contacting Customer Service. If you contact Customer Service to cancel your subscription more than 60 days after purchase or renewal, you are not entitled to a refund for any fees that you may have paid in advance for the current term, and you will remain liable for all fees you incur or accrue during the current term.
If you have a monthly subscription, cancelling will not retroactively refund subscription payments, and previously charged subscription fees cannot be pro-rated based on cancellation date. Cancelling a monthly subscription will stop the recurring fee going forward, and you will have access to your subscription until the end of the 30-day period in which you notified NoiseAware of your cancellation.
You are responsible for ensuring that your billing information is current, complete, and accurate. If NoiseAware experiences a problem processing payment using the information you originally provided, you authorize NoiseAware to complete your transaction if possible directly through your credit account with your financial institution to prevent an interruption in service.
- The Solution is licensed to you (and the Hardware is leased unless you have paid a separate and distinct Hardware fee in which case you own the Hardware subject to the restrictions herein), not sold, and it is protected by national and international laws and treaties in the United States and around the world. You do not have any right to reproduce or distribute the Software without NoiseAware’s permission, and if you do so you may be subject to fines or any other penalties allowed by the civil and criminal laws of your country. You understand and agree that unless you paid a separate and distinct fee for the Hardware that converted ownership of the Hardware then you did not buy the Hardware, do not own the Hardware, and must use and return the Hardware as explained in this Agreement. You may not: reverse-engineer or otherwise try to derive firmware, internal components of the Hardware, source code from the Software, unless allowed by law; adapt or modify the Solution or create derivative works based on the Solution; publish, copy (other than backup copies if permitted by your subscription), sell, lend, give away, pledge, mortgage, alter, tamper with, rent, sublicense, assign or in any other way transfer the Solution to anyone else; exploit the Solution for any commercial purposes (excluding solely property management services where you or your company received the Solution from a distributor, reseller or strategic business partner of NoiseAware, provided that you may not further resell or separate the Solution unless you have a written agreement to do so); attempt to circumvent technical protection measures in the Solution; use the Solution to violate the law; or engage in any activity that interferes with anyone else’s use of the Solution. If you have installed the Software on a device and you transfer ownership of that device to someone else, you must ensure that any Software is deleted from that device and that the device information is removed from your account with NoiseAware. The Solution may contain enforcement technology that limits the size of bandwidth consumption, or the number of devices on which the Solution may be installed or that allows NoiseAware to suspend your access to the Solution if this Agreement terminates or expires.
- Support, Updates & Product Lifecycle. Users with unexpired, paid subscriptions will receive support in accordance with NoiseAware’s current standard support offerings, policies, and procedures as described on the Website. NoiseAware’s standard support offerings, policies, and procedures may change from time to time at NoiseAware’s sole discretion and may vary by country. Any obligation NoiseAware may have to support the previous version of the Solution ends when an upgrade, modified or later version, or other update to the Solution (“Update”) becomes available. For your convenience and to ensure that the Solution includes new features that NoiseAware develops, by agreeing to this Agreement you give NoiseAware permission to install Updates on your devices automatically when available, to the extent that it is possible for NoiseAware to run such background installations. Any Updates or technical support provided for free versions of the Solution or for Trial Features that may be provided are provided at NoiseAware’s sole discretion and may be discontinued at any time. From time to time, at NoiseAware’s sole discretion, NoiseAware may elect to discontinue certain Solution or particular features of the Solution. “End of Support” refers to the date when NoiseAware no longer provides automatic fixes, updates or technical assistance for particular Solution. If a renewal term for your subscription would expire past the End of Support, you may not be eligible to renew your subscription. For more information, please visit NoiseAware’s Website. For the avoidance of doubt, all Software delivered via SaaS methodology may be modified, updated and improved at NoiseAware’s sole discretion.
- Binding Arbitration and Class Action Waiver.
- Agreement to Arbitrate Disputes. Any claim, dispute or controversy (“Claim”) by either you or NoiseAware against the other arising from, relating to or in any way concerning the Agreement, the Solution, or any Hardware, equipment, products, or services you receive from NoiseAware (or from any advertising for any such products or services) shall, at the demand of either party, be resolved by confidential binding arbitration. This agreement to arbitrate also includes claims relating to the enforceability or interpretation of any of these arbitration provisions. However, NoiseAware will not demand arbitration pursuant to this Agreement in connection with any individual claim that you properly file and pursue in a small-claims court of your state or municipality, so long as the claim is pending only in that court and the claim is on an individual (non-class, non-representative) basis. This agreement to arbitrate includes all controversies and claims of any kind, regardless of the type of claim or legal theory or remedy (damages, injunctive relief, or declaratory relief). The disputes subject to this arbitration agreement include not only claims by you, but also made on your behalf or connected with you, such as an employee, representative, agent, predecessor, successor, heir, assignee, or trustee in bankruptcy. Disputes subject to this arbitration agreement include not only claims that relate directly to NoiseAware, but also to NoiseAware’s parent, affiliates, successors, assignees, employees, and agents. This agreement to arbitrate includes claims made as part of a class action, private attorney general or other representative action, it being expressly understood and agreed to that the arbitration of such claims must proceed on an individual (non-class, non-representative) basis and the arbitrator may award relief only on an individual (non-class and non-representative) basis. You and NoiseAware agree that no class action, private attorney general or other representative claims may be pursued in arbitration, nor may such action be pursued in court if either you or NoiseAware elects arbitration. By accepting this arbitration agreement, you agree to waive the right to initiate or participate in a class action, representative action, private attorney general litigation or consolidated arbitration related to this Agreement.
- Notice of Dispute. If either of us intends to seek arbitration, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating arbitration. Notice should be sent to NoiseAware, 2800 Routh Street, Suite 215, Dallas, Texas 75201, USA, Attention: General Counsel. The notice must include your name, address, and contact information, the facts giving rise to the dispute, and the relief requested. You and NoiseAware will attempt to resolve any dispute through informal negotiation within 60 days from the date of the Notice of Dispute is sent. After 60 days, you or NoiseAware may commence arbitration.
- Administration of Arbitration. If you and NoiseAware do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by binding arbitration governed by the Federal Arbitration Act (“FAA”). YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. Instead, all disputes will be resolved before a single, neutral arbitrator and the proceeding shall be confidential. The arbitrator will be either a lawyer admitted to practice law in his or her jurisdiction and with at least ten years’ experience or a retired or former judge selected in accordance with the rules of the AAA. The arbitrator is bound by the terms of this Agreement, and the arbitration shall be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by this Agreement (the “Arbitration Rules”). For more information, see adr.org or call 1.800.778.7879. Unless the disclosed claims or counterclaims are less than $25,000, the arbitrator shall issue a reasoned, written decision sufficient to explain the essential findings and conclusions on which the award is based. All arbitration proceedings shall be conducted in English, and the United States FAA shall apply to the Agreement and the binding arbitration. The award shall be confidential and only disclosed as is necessary to obtain judgment or as otherwise required by law. Where authorized by applicable law, the arbitrator’s award may include attorneys’ fees and other expenses. The arbitration award shall determine the rights and obligations between the named parties only, and only in respect of the claims in arbitration, and shall not have any bearing on the rights and obligations of any other dispute.
- Costs. The party initiating the arbitration shall pay the initial filing fee. If you file the arbitration and an award is rendered in your favor, NoiseAware will reimburse you for your filing fee. If there is a hearing, NoiseAware will pay the fees and costs for the first day of that hearing. All other fees and costs will be allocated in accordance with the arbitration rules. However, NoiseAware will advance or reimburse filing and other fees if the arbitrator rules that you cannot afford to pay them or if you ask NoiseAware and NoiseAware determines there is a good reason for doing so. Each party shall bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
- Right to Resort to Provisional Remedies Preserved. Nothing herein shall be deemed to limit or constrain NoiseAware’s right to resort to self-help remedies or to comply with legal process, or to obtain provisional remedies such as injunctive relief, attachment, or garnishment by a court having appropriate jurisdiction; provided, however, that you or NoiseAware may elect to arbitrate any dispute related to such provisional remedies.
- Conflicting Terms. In the event of a conflict between the arbitration rules and this arbitration agreement, this arbitration agreement shall govern.
- WAIVER OF JURY TRIAL. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND NOISEAWARE AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND NOISEAWARE UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THE AGREEMENT OR FROM ANY SOLUTION, SOFTWARE, HARDWARE, PRODUCTS AND SERVICES YOU RECEIVE FROM NOISEAWARE (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES). IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.
- Limited Warranties; Disclaimer of Other Warranties.
- Warranties. For sixty (60) days after the purchase date, for paid versions of the Solution only, NoiseAware warrants that the Solution licensed under this Agreement (including Updates provided during the warranty period but only until the warranty lapses) will perform substantially in accordance with the documentation provided by NoiseAware in connection with that Solution at the time of purchase. NoiseAware does not warrant or guarantee that any particular mobile device or computer will be compatible with or function with the Solution, nor does NoiseAware warrant or accept any liability for the operation of your personal equipment that is used to access the Solution. Your sole remedy, and NoiseAware and its suppliers’ entire liability, in case of any breach of this limited warranty is that NoiseAware will, at its option, refund the price you paid for the Solution upon your return thereof, or provide an alternative remedy as required by local consumer law in your jurisdiction. These remedies may not be available in some countries to the extent that NoiseAware is subject to restrictions under applicable export-control laws and regulations.
- Exclusions. THE ABOVE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES. THEY REPLACE ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, PERFORMANCE, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION, THE SOLUTION IS PROVIDED AS IS. YOU ARE RESPONSIBLE FOR SELECTING THE SOLUTION TO ACHIEVE YOUR INTENDED RESULTS, FOR INSTALLING, ACCESSING AND USING THE SOLUTION, AND FOR THE RESULTS OBTAINED. NOISEAWARE DOES NOT WARRANT OR GUARANTEE THE SOLUTION’S USE OR PERFORMANCE. NOISEAWARE DOES NOT WARRANT OR GUARANTEE THAT THE SOLUTION’S OPERATION WILL BE FAILSAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS, THAT THE SOLUTION WILL PREVENT TICKETS, FINES OR OTHER COSTS ASSOCIATED WITH A NOISE OR OTHER COMPLAINT, THAT THERE WILL BE NO MALFUNCTIONS OR OTHER ERRORS IN THE SOLUTION CAUSED BY VIRUS, INFECTION, WORM OR SIMILAR MALICIOUS CODE NOT INTRODUCED BY NOISEAWARE, OR THAT THE SOLUTION WILL MEET YOUR REQUIREMENTS. NOISEAWARE IS NOT LIABLE FOR ANY DOWNTIME OR SERVICE INTERRUPTION, FOR ANY LOST DATA OR SYSTEMS, OR FOR ANY OTHER DAMAGES ARISING OUT OF OR RELATING TO ANY NOISE ALERTS. NOISEAWARE DOES NOT MAKE ANY WARRANTY THAT THE PRODUCTS WILL DETECT OR REPORT NOISE AND ANY STATEMENTS REGARDING DECIBELS AND NOISE SCORES ARE ESTIMATES ONLY AND MAY NOT BE RELIED ON FOR DISPUTING NOISE VIOLATIONS, INSURANCE OR ANY OTHER CLAIMS. AS SUCH, YOU AGREE THAT THE NOISEAWARE SOLUTION, ITS USER INTERFACE, DATA OR REPORTS ARE NOT INTENDED TO BE USED AS EVIDENCE IN A LEGAL PROCEEDING AND NOISEAWARE SHALL HAVE NO OBLIGATION OR INVOLVEMENT THEREIN. The Solution is not fault-tolerant and is not designed or intended for high-risk activities such as use in hazardous environments requiring failsafe performance, including nuclear-facilities operations, air traffic communication systems, weapons systems, direct life-support machines, or any other application in which the failure of the Solution could lead directly to death, personal injury, or severe physical or property damage. This warranty does not cover defects, damage or failure of Hardware caused by misuse, accident, unauthorized modification, improper use or maintenance, a force majeure event (e.g., earthquake, lightning, flood, fire, etc.), inspection, reverse engineering (which is expressly prohibited) or any other damage or failure caused by a third party or a third party product. This warranty is void if product or part identification labels are removed from the Hardware without written authorization from NoiseAware. Further, this warranty is void if additional Hardware or Software is installed on the Hardware without written authorization from NoiseAware, or if any tampering is detected with the Hardware. This warranty does not apply to any Hardware that is located in an unsuitable operating environment, or has been altered, except as authorized by a NoiseAware Support representative.
- Hardware Service. To receive warranty service on Hardware, you must contact NoiseAware or its agent. If you do not register the Solution with NoiseAware, you may be required to present proof of purchase. Hardware products covered under the warranty will be repaired or replaced with like or better quality at NoiseAware’s sole discretion. For returns under this warranty, NoiseAware will issue a Return Materials Authorization (“RMA”) number including shipping information and tracking number. You will properly package, insure, and ship prepaid the defective Hardware to the NoiseAware repair site at your expense using the shipping you designated by NoiseAware. Damage or loss of goods during shipment to NoiseAware is your responsibility. NoiseAware will pay all packing, shipping, and insurance to ship the repaired or replacement Hardware to You (CIP IncoTerms 2010). Except as otherwise provided under the Support Terms, the foregoing is your sole and exclusive remedy, and NoiseAware’s sole and exclusive obligation, for defects or failures related to the Hardware. Prior to returning any Hardware to NoiseAware for repair or replacement, you must obtain a RMA number from NoiseAware’s support team. HARDWARE SENT TO NOISEAWARE WITHOUT AN RMA NUMBER MAY BE REJECTED BY NOISEAWARE AND RETURNED TO YOU AT YOUR EXPENSE. You should be prepared to provide NoiseAware with the location of the Hardware, a detailed description of the problems or errors, a description of the Hardware, including serial number, and the version of the Software loaded on the Hardware.
- Indemnity and Limitation of Liability.
- NoiseAware Indemnification. NOISEAWARE WILL INDEMNIFY, DEFEND, AND HOLD YOU HARMLESS FROM ALL THIRD PARTY CLAIMS AND LAWSUITS WHICH ARE CAUSED BY THE PRODUCT’S INFRINGEMENT OF A U.S. COPYRIGHT, U.S. TRADEMARK, U.S. TRADE SECRET, OR U.S. PATENT OF SUCH THIRD PARTY UNDER UNITED STATES LAW. NOISEAWARE’S INDEMNIFICATION OBLIGATION IS SUBJECT TO: (A) YOU PROVIDING NOISEAWARE WITH PROMPT WRITTEN NOTICE OF ANY CLAIM OR LAWSUIT, (B) NOISEAWARE HAVING SOLE CONTROL OF THE DEFENSE AND ALL NEGOTIATIONS FOR SETTLEMENT OR COMPROMISE THEREOF AND (C) YOU REASONABLY COOPERATING IN THE DEFENSE OF SUCH CLAIM OR LAWSUIT. NOISEAWARE AGREES TO PAY ALL SETTLEMENTS ENTERED INTO BY NOISEAWARE, JUDGMENTS FINALLY AWARDED AGAINST YOU, AND ALL ATTORNEYS’ FEES AND EXPENSES FOR COUNSEL HIRED BY NOISEAWARE. YOU MAY ELECT TO PARTICIPATE IN ANY SUCH ACTION WITH COUNSEL OF ITS OWN CHOICE AND EXPENSE. NOISEAWARE WILL HAVE NO LIABILITY IF THE ALLEGED INFRINGEMENT IS BASED UPON: (I) A COMBINATION OF NON-NOISEAWARE PRODUCTS; (II) USE FOR A PURPOSE OR IN A MANNER NOT PRESCRIBED BY NOISEAWARE; (III) USE OF ANY OLDER VERSION OF A PRODUCT WHEN USE OF NEWER PRODUCT WOULD HAVE AVOIDED INFRINGEMENT; (IV) ANY MODIFICATION NOT MADE WITH NOISEAWARE’S WRITTEN APPROVAL OR ANY MODIFICATION MADE BY NOISEAWARE DUE TO YOUR SPECIFIC INSTRUCTIONS; (V) LICENSED COMPONENTS SOURCED THROUGH THIRD PARTIES OR (VI) ANY INTELLECTUAL PROPERTY RIGHT OWNED OR LICENSED BY YOU, YOUR COMPANY (IF YOU ARE USING FOR BENEFIT OF AN ENTITY), ITS END USERS OR ANY OF ITS/THEIR AFFILIATES. THE PROVISIONS OF THIS SECTION 10.1 SET FORTH NOISEAWARE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
- Your Indemnification of NoiseAware. YOU WILL INDEMNIFY NOISEAWARE AND, AT ITS OPTION, DEFEND ANY ACTION BROUGHT AGAINST NOISEAWARE TO THE EXTENT THAT IT IS BASED UPON A THIRD PARTY CLAIM ARISING OUT OF (I) THE UNAUTHORIZED OR UNLICENSED USE OF THE PRODUCTS; (II) YOUR INTELLECTUAL PROPERTY OR PRODUCTS VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, PRIVACY RIGHTS OR ANY VIOLATION OF APPLICABLE LAW; (III) YOUR GROSS NEGLIGENCE OR WILLFUL ACTS RESULTING IN THE DEATH, DISABILITY OR DAMAGE OR REAL PROPERTY OF SUCH THIRD PARTY; OR (IV) NOISEAWARE’S COMPLIANCE WITH YOUR DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS WHERE SUCH CLAIM WOULD HAVE BEEN AVOIDED BUT FOR SUCH COMPLIANCE WITH YOUR REQUEST, AND WILL PAY ANY COSTS, DAMAGES AND REASONABLE ATTORNEYS’ FEES ATTRIBUTABLE TO SUCH CLAIM THAT ARE AWARDED AGAINST NOISEAWARE, PROVIDED THAT NOISEAWARE (A) NOTIFIES YOU IN WRITING OF THE CLAIM WITHIN TEN (10) DAYS AFTER BECOMING AWARE OF SUCH CLAIM; (B) GRANTS YOU SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM, IF YOU ASSUME SUCH DEFENSE; AND (C) PROVIDES YOU WITH ALL ASSISTANCE, INFORMATION AND AUTHORITY REASONABLY REQUIRED FOR THE DEFENSE AND SETTLEMENT OF THE CLAIM.
- Limitation of Liability. UNDER NO CIRCUMSTANCES ARE NOISEAWARE OR ITS SUPPLIERS LIABLE TO YOU FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THOSE RESULTING FROM DEATH, DISABILITY, INJURY, OR DAMAGE TO TANGIBLE PROPERTY; (B) THEFT OF PERSONALLY IDENTIFIABLE INFORMATION, VIOLATION OF ANY LAWS BY YOU INCLUDING PRIVACY LAWS, OR COST OF PROCURING SUBSTITUTE SOLUTION OR SERVICES, AND (C) DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, OR NEGLIGENCE OF ANY KIND, OR FOR ANY OTHER INDIRECT DAMAGE OR LOSS. IN NO EVENT WILL NOISEAWARE, NOISEAWARE AFFILIATES’ OR NOISEAWARE SUPPLIERS’ AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE PRICE YOU PAID FOR THE APPLICABLE SOLUTION, OR US $100 (OR THE EQUIVALENT AMOUNT IN NATIONAL CURRENCY) IF YOU USED A FREE VERSION OF THE SOLUTION. NOISEAWARE SHALL HAVE NO LIABILITY OR OBLIGATION FOR ANY DAMAGES THAT ARISE FROM THE USE OF HARDWARE AS PART OF OR IN COMBINATION WITH ANY DEVICES, PARTS OR THIRD PARTY PRODUCTS THAT ARE NOT PROVIDED BY NOISEAWARE AND ARE INCONSISTENT WITH THE DESIGNED PURPOSE OF THE NOISEAWARE HARDWARE. You agree to the limitations of liability in this Section 10.3 and acknowledge that without your agreement to this term, the fee charged for the Solution would be higher. Nothing in this Agreement limits any rights you may have under existing consumer-protection statutes or other applicable laws, that may not be waived by contract in your jurisdiction.
- Government End Users and Export Control. The Software is commercial computer software under DFARS Section 217.7202, the Defense Federal Acquisition Regulations Supplement (codified under Chapter 2 in Title 48, Code of Federal Regulations). The accompanying documentation (if any) is commercial-computer-software documentation under FAR Section 12.212, the Federal Acquisition Regulations (codified in Title 48 of the United States Code of Federal Regulations). Any use, modification, reproduction, release, performance, display, or disclosure of the Software and accompanying documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. Your use of the Solution and its related documentation, including technical data, may not be exported or re-exported in violation of the U.S. Export Administration Act, its implementing laws and regulations, the laws and regulations of other U.S. agencies, or the export and import laws of the jurisdiction in which you obtained the Solution. Export to a particular individual, entity, or country may be prohibited by law. Information about import restrictions can be found at websites maintained by OFAC.
- Third Party Programs. Some third-party materials included with the Solution may be subject to other terms and conditions, which are typically found in a “Read Me” or an “About” file accompanying the Solution. Those third-party materials may include software source code licensed by third parties under one or more open-source or free-software licenses, including the GNU General Public License (GPL), which are considered “Open Source Software.” The Open Source Software is licensed under terms and conditions different from this Agreement and may, in some cases, conflict with the terms of this Agreement and will apply instead of the terms of this Agreement. If an Open Source Software license requires NoiseAware to distribute any source code related to the Software or any modifications to the Software, NoiseAware will make the source code available on request.
- Local Law. The subsections below contain information regarding the local laws of certain jurisdictions that will apply to this Agreement and may supersede certain provisions as referenced herein.
Canada – If you acquired the Solution in Canada, unless expressly prohibited by local law, then this Agreement, the use of the Solution, the relationship of the parties, and any disputes arising out of, concerning, or relating to the Agreement, including any disputes between you and NoiseAware, will be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada.
Japan – If you acquired the Solution in Japan, then this Agreement, the use of the Solution, the relationship of the parties, and any disputes arising out of, concerning, or relating to the Agreement, including any disputes between you and NoiseAware, will be governed by and construed in accordance with Japanese law without regard to its choice-of-law rules.
European Union – If you acquired the Solution in the European Union, Iceland, Norway, or Switzerland, then national law of the country where you acquired the Solution applies.