ZEN Thermostat™ End User Licence Agreement and Limited Warranty

IMPORTANT – PLEASE READ CAREFULLY.  PERMISSION TO USE ZEN THERMOSTAT™ IS CONDITIONAL UPON YOU AGREEING TO THE TERMS SET OUT IN THIS END USER LICENCE AGREEMENT AND LIMITED WARRANTY (“EULA”).   THIS EULA SETS OUT THE BASIS UPON WHICH WE PERMIT ZEN THERMOSTAT™ TO BE USED BY YOU AND INCLUDES AN INDEMNITY BY YOU, WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY BY US AND A LIMITED WARRANTY.

BY CLICKING “[I ACCEPT THE LICENCE TERMS]” AND/OR INSTALLING OR USING ZEN THERMOSTAT™, YOU AGREE TO BE BOUND BY THIS EULA.   IF YOU DO NOT WISH TO ACCEPT THESE TERMS YOU MUST NOT CLICK “[I ACCEPT THE LICENCE TERMS]” AND YOU MUST NOT INSTALL OR USE THE ZEN THERMOSTAT™.

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT PERMITTED TO USE THE ZEN THERMOSTAT™  OR THE SOFTWARE (AS DEFINED BELOW), AND YOU MAY CHOOSE TO PROMPTLY RETURN THE ZEN THERMOSTAT™ FOR A REFUND OF THE PURCHASE PRICE BY CONTACTING ZEN WITHIN INC. AT 2901 WEST COAST HIGHWAY, NEWPORT BEACH, CA 92663 (IF YOU PURCHASED OR USE THE ZEN THERMOSTAT™ OUTSIDE AUSTRALIA) OR 436 ELGAR RD, BOX HILL, VIC, 3128, AUSTRALIA (IF YOU PURCHASED OR USE THE ZEN THERMOSTAT™ IN AUSTRALIA).

Introduction
  1. In this EULA, “we”, “us” and “our” means ZEN Within Inc.; “ZEN Thermostat™” is our product known as “ZEN Thermostat™”, comprising (a) the ZEN Thermostat™ controller or other item of “ZEN Thermostat™” branded hardware provided by us to you from time to time (“ZEN Device”) and (b) any firmware installed on the ZEN Device and any ZEN Thermostat™ software made available for download from our website from time to time (together, the “Software”); and “Website Data” is any information, data or other content contained or comprised in, or accessible or generated through the use of the ZEN Thermostat™ website (www.zenthermostat.com).
Your rights to use ZEN Thermostat™
  1. Copyright in the Software remains owned by us or our licensors. No ownership rights in the Software or any copy thereof are being sold to you.  Subject to the terms of this EULA, we grant you a personal, non-exclusive, non-transferable, perpetual licence to use the Software for your personal, non-commercial purposes (if you are an individual) or for your own internal business purposes (if you are a business).  Certain items of software included with the Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
  2. The licence granted under Section 2 is subject to, and you must comply with, the following conditions:
    • you are only licensed to use the Software in conjunction with the ZEN Device. You must not use the Software independently of the ZEN Device (for example, by using the Software to control your HVAC system by means of a device which is used in substitution for the ZEN Device);
    • you must not copy, reproduce, transmit, distribute, translate, adapt, vary, modify, publicly perform or publicly display any of the Software without our written consent, except as expressly authorised by this EULA;
    • you must not decompile, reverse engineer or otherwise attempt to derive the algorithms by which any of the Software operates (except to the extent applicable laws specifically prohibit such restriction);
    • you must not provide or otherwise make available any part of the ZEN Device or the Software in any form to any person, nor use any part of ZEN Thermostat™”, to provide services to any person, without our prior written consent; and
    • you must not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
  3. You are only permitted to use the ZEN Device in conjunction with the Software. You must not use the ZEN Device independently of any part of the Software (for example, by using the ZEN Device to connect to your HVAC system by means of an alternative computer program which is used in substitution for the Software).
  4. You must not disassemble the ZEN Device, or attempt to derive any confidential or proprietary information concerning the design or construction of the ZEN Device (except to the extent applicable laws specifically prohibit such restriction).
  5. The Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of ZEN Within Inc. and its licensors. The Software (and any copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. Any rights in ZEN Thermostat™ and in the Software not expressly granted to you are reserved, except that nothing in this EULA excludes or limits your rights to make reproductions of the Software where, and to the extent that, such exclusions or limitations are not permitted by, or effective at, law.
  6. Rights in any trademarks used in association with ZEN Thermostat™ are retained by us or our licensors. You will not use any of our trade marks without our written consent.
  7. YOU INDEMNIFY US AND OUR EMPLOYEES AND AGENTS (“THOSE INDEMNIFIED”) FROM AND AGAINST ANY LOSS (INCLUDING REASONABLE COSTS AND EXPENSES), DAMAGE, COST, EXPENSE OR OTHER LIABILITY REASONABLY INCURRED OR SUFFERED BY ANY OF THOSE INDEMNIFIED IN CONNECTION WITH A THIRD PARTY CLAIM AGAINST ANY OF THOSE INDEMNIFIED ARISING FROM A FAILURE BY YOU TO COMPLY WITH THIS EULA.
Limited Warranty
  1. Zen Within Inc. warrants to you that for a period of twelve (12) months following delivery (“Warranty Period”) the ZEN Device will be free from defects in materials and workmanship under normal and proper use and when correctly installed, integrated and maintained in accordance with our published specifications (“Limited Warranty”). You acknowledge that the limited warranties set forth hereunder are made solely for the your benefit as the original end user, and not for the benefit of any party to whom you sell, transfer or provide the ZEN Thermostat™.
  2. You must give us prompt written notice at Zen Within Inc. , 2901 West Coast Highway, Newport Beach, CA 92663 (if you purchased or use the Zen Thermostat™ outside Australia) or 436 Elgar Rd, Box Hill, VIC, 3128, Australia (if you purchased or use the Zen Thermostat™ in Australia) of any alleged non-conformance with the Limited Warranty under Section 9 above and must provide Zen Within Inc. with all the necessary information and materials for us to diagnose the problem, including such items as, without limitation, a detailed description of the problem, and any other documentation which may aid in the problem correction process.
  3. If, under normal and proper use, the ZEN Thermostat™ does not conform to the Limited Warranty under Section 9 during the Warranty Period, and you notify us in writing of such defect or non-conformance in accordance with the foregoing requirements during the Warranty Period, our sole obligation will be to, at our sole option, either repair, replace with new or correct the same without charge or, if we are unable after using reasonable efforts to repair, replace or correct within a reasonable time period, accept a return of the ZEN Thermostat™ and provide a refund to you of the original purchase price you paid.
  4. This Limited Warranty is conditional on you providing us with all the necessary information and materials for us to confirm any alleged non-conformance, including without limitation, a detailed description of the mode of integration and use of the ZEN Thermostat™, any third party components (hardware, firmware or software) connected to or interfacing with the ZEN Device or Software, and any other documentation, which may aid in the problem correction process.
  5. For clarity, this Limited Warranty does not apply to any defects or nonconformities that in our reasonable opinion arise, in whole or in part, from (a) improper or inadequate installation, integration, use or maintenance of the ZEN Device, including without limitation of any upgrades to the firmware provided by us to you, (b) any hardware, firmware, software, equipment, parts or supplies not supplied by us, (c) use of the ZEN Thermostat™ other than as contemplated by the documentation, (d) unusual electrical or physical stress, misuse, abuse, or unauthorized repair or modification of the Thermostat™, (e) use of any ZEN Thermostat™ in an application for which it was not intended, (f) misuse, abuse, improper handling, storage, neglect, unusual physical, optical or electrical stress, improper installation, repair, testing, or any other cause beyond normal usage, (g) failure to comply with all applicable environmental requirements for the ZEN Thermostat™ as specified by us or any other applicable supplier, including but not limited to temperature or humidity ranges, (h) accident, Acts of God, including but not limited to lightning, flood, tornado, earthquake, or hurricane, or other cause beyond our reasonable control, (i) any error, act or omission by anyone other than us, or (j) where written notice of the defect has not been given to us within the Warranty Period or within a reasonable time period, not to exceed one month, thereafter. This Limited Warranty does not cover consumable parts, including batteries, unless damage is due to defects in materials or workmanship of the ZEN Thermostat™ (even if packaged or sold with the product).
  6. Shipping expenses associated with returning any such ZEN Device to us must be borne by you, unless it is ultimately determined by us that such ZEN Device is defective, in which case it will be borne by us. In the event that any returned ZEN Device is determined by us to not be defective or otherwise not covered by the Limited Warranty, then at our option and written notice to you, you agree to reimburse us for any and all fees and expenses related to the handling, inspection, testing, repair and return of such ZEN Device. In repairing or replacing any ZEN Device, or part thereof, under this Limited Warranty, we may use new, remanufactured, reconditioned, refurbished or functionally equivalent ZEN Device or parts. Replaced ZEN Device or parts will become our property. The warranty service hereunder will be performed at our facility or your installation site as determined by us. This Limited Warranty is exclusive to you and you may not make any representation or warranty to any customer or third party on behalf of us.THE REMEDIES IN SECTIONS 9-14 ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE LIMITED WARRANTY UNDER THIS AGREEMENT. ZEN WITHIN INC. AND ITS SUPPLIERS AND LICENSORS DO NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR THEM, ANY OTHER OBLIGATIONS OR LIABILITIES IN CONNECTION WITH THE SALE OR DISTRIBUTION OF THE ZEN THERMOSTAT™.EXCEPT AS EXPRESSLY SET FORTH IN SECTIONs 9-14 AND TO THE FULLEST EXTENT PERMITTED BY LAW, ZEN WITHIN INC. AND ITS SUPPLIERS AND LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE ZEN THERMOSTAT™, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  INSOFAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, ZEN WITHIN INC.  LIMITS THE DURATION OF AND REMEDIES FOR BREACH OF SUCH WARRANTIES TO THE DURATION AND REMEDIES OF THE EXPRESS LIMITED WARRANTY DESCRIBED IN SECTION 9.  SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

    To the maximum extent permitted by law, we give no other guarantees, and make no representations, concerning (or concerning the use or performance of) any of the Software, the ZEN Device and the Website Data.

Disclaimers and acknowledgements about website data and outputs
  1. You acknowledge and agree that the Website Data is only intended to be used as a guide to your use of ZEN Thermostat™.ANY INACCURACIES CAUSED BY HVAC SYSTEM FAULTS, UPGRADES, MAINTENANCE OR OTHER DOWNTIME, OR INACCURATE DATA CONCERNING YOUR HVAC WIRING, ARE NOT OUR RESPONSIBILITY.  FOR THESE REASONS, WE MAKE NO WARRANTIES OR REPRESENTATIONS, AND WILL HAVE NO LIABILTY (ON ANY BASIS, INCLUDING NEGLIGENCE), IN RESPECT OF ANY WEBSITE DATA OR RELATED RECOMMENDATIONS BEING INACCURATE, INCOMPLETE, OUT OF DATE OR UNSUITABLE FOR ANY PURPOSE.  YOU AGREE THAT YOU ACCESS AND RELY ON THE WEBSITE DATA AT YOUR RISK AND MUST MAKE YOUR OWN INDEPENDENT ENQUIRIES BEFORE MAKING DECISIONS ABOUT YOUR PARTICULAR CIRCUMSTANCES.
  1. The Software allows you to enter details of your HVAC wiring so that you can obtain a recommendation for installing your ZEN Thermostat™. It is your responsibility to ensure those details are accurate.  For your convenience, we may from time to time make information concerning HVAC wiring available for download over the internet through our website “Wiring Information”.  This service is provided by us for your convenience only.WHILE WE USE COMMERCIALLY REASONABLE EFFORTS TO KEEP OUR DATABASE OF HVAC WIRING DATA UP-TO-DATE, WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS OR ONGOING AVAILABILITY OF THE DATABASE.  WE MAY DISCONTINUE OR VARY THIS WIRING SERVICE AT ANY TIME AND THEREFORE CANNOT GUARANTEE THAT THE DATABASE WILL CONTINUE TO BE AVAILABLE (EITHER FREE OF CHARGE OR AT ALL).
Limitation of Liabilities
  1. If you purchased or use the ZEN Thermostat™ in Australia, the ZEN Thermostat™ comes with guarantees that cannot be excluded under the Australian Consumer Law, including guarantees that the ZEN Device and the Software will be of acceptable quality and reasonably fit for purpose. Where conditions, warranties or guarantees implied by or otherwise arising under applicable law cannot be lawfully excluded, then to the extent permitted by law, we limit our liability for a breach of any such condition, warranty or guarantee, where we are entitled to do so, at our option, to any one or more of: in respect of services, the resupply of the relevant services or paying the cost of that resupply; and, in respect of goods, the repair or replacement of the relevant goods or paying the cost of that repair or replacement.
  2. ZEN Within Inc. is not liable for any internet access or data usage fees or charges associated with your use of the Software or access to any information provided through ZEN Within Inc.’s website or any third party website or otherwise.
  3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL OR CREDIT, LOSS OF REPUTATION OR FUTURE REPUTATION OR PUBLICITY OR LOSS OF ANTICIPATED SAVINGS, HOWEVER CAUSED (WHETHER BY NEGLIGENCE OR OTHERWISE), ARISING OUT OF OR RELATING TO ANY OF THIS EULA, THE ZEN THERMOSTAT™, THE SOFTWARE, THE ZEN DEVICE OR THE WEBSITE DATA, EVEN IF WE KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
  4. WITHOUT LIMITING SECTIONS 15 TO 20 ABOVE, IF WE ARE LIABLE TO YOU FOR DAMAGES (ON ANY BASIS, INCLUDING NEGLIGENCE) UNDER OR IN CONNECTION WITH THIS EULA, THE ZEN THERMOSTAT™, THE SOFTWARE, THE ZEN DEVICE OR THE WEBSITE DATA, THEN TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR MAXIMUM AGGREGATE LIABILITY FOR THOSE DAMAGES WILL NOT EXCEED THE AMOUNT OF THE PURCHASE PRICE OR FEES YOU HAVE PAID TO US (OR OUR AUTHORIZED RESELLERS) TO OBTAIN YOUR ZEN THERMOSTAT™. WE DISCLAIM ALL LIABILITY OF ANY KIND AS TO OUR LICENSORS AND SUPPLIERS.
Maintenance
  1. Nothing in this EULA entitles you to support or maintenance services, updates or new releases in respect of ZEN Thermostat™. However, if we in our absolute discretion supply you with updates or new releases in respect of the Software, then they will be subject to this EULA.  You are solely responsible for the installation of any update or new release.
U.S. Government End Users.
  1. The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
Termination
  1. This EULA and the license granted hereunder are effective on the date you first use the Software or ZEN Thermostat™ and shall continue for as long as you own the ZEN Thermostat™, unless this EULA is terminated under this section. ZEN Within Inc. 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 ZEN Within Inc. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Software and the ZEN Thermostat™, but the definitions and the rights, duties and obligations of the parties that by their nature continue and survive (including, without limitation, the provisions concerning ownership, limitation on liability, indemnity and the warranty disclaimers) shall survive any termination of this EULA.
General
  1. 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.
  2. Failure or neglect by either party to enforce at any time any of the provisions of this EULA will not be construed or deemed to be a waiver of that party’s rights under this EULA.
  3. This EULA contains the entire agreement between you and us concerning the subject matter hereof and supersedes any other prior or contemporaneous oral understanding or agreement or any other prior written agreement regarding this subject matter.
  4. 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.
  5. The courts in some countries will not apply Massachusetts law to some types of disputes. If you reside in one of those countries, then where Massachusetts law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, except as provided below, 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 Massachusetts, 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 Massachusetts and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that ZEN Within Inc. may seek injunctive relief in any court having jurisdiction to protect its intellectual property or confidential information. If you purchased or use the ZEN Thermostat™ in Australia, then this EULA will be governed by the law of Victoria, and the parties submit to the non-exclusive jurisdiction of the Victorian courts.