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Tosibox hardware, applications embedded software and software end user license agreement

1. INTRODUCTION

This Tosibox Hardware, Applications Embedded Software and Software  End User License Agreement (the “EULA”) governs your use of the hardware products and hardware-embedded software applications provided by Tosibox Oy or any of its subsidiaries, parents, and affiliates (“Tosibox”).

This Agreement is between you and Tosibox Oy, located at Teknologiantie 12 A, FI-90590 Oulu, FINLAND.

By purchasing or using a Tosibox Product, you agree to be bound by all terms of this Agreement that are applicable in the territory where you are located.  Tosibox retains the right to modify and change this Agreement, subject to applicable law, and your continued use of the Tosibox Product indicates your continued acceptance of the Agreement.

2. THE PRODUCT

Tosibox provides certain Tosibox hardware products (the “Hardware”) that may contain embedded software and/or firmware (“Embedded Software”) and Software (“Software”).  The Hardware, Embedded Software, Software and all related software or other products or services offered by Tosibox collectively form the “Product.”

3. UPDATES TO THE EULA

Tosibox reserves the right, at its discretion, to change, modify, add or remove portions of this EULA at any time by posting the amended EULA on the Tosibox website (www.Tosibox.com).  It is your responsibility to periodically check the EULA for changes.  Unless otherwise stated, all amended terms shall be effective immediately after they are initially posted.  If at any point you do not agree to any portion of the then-current version of our EULA, your sole remedy is to stop using the Product.  You will be deemed to have accepted any changes to the EULA by continuing to use the Product.

4. GRANT OF LICENSE; OWNERSHIP.

Subject to the terms and restrictions of this EULA, Tosibox grants you a personal, revocable, non-transferable, non-exclusive license to use the Product.  You agree not to modify, rent, lease, loan, sell, assign, distribute, reverse engineer, or create derivative works based on any element of the Product except as expressly authorized by Tosibox.

The Product, including without limitation the Embedded Software, the Software and any patents, trademarks, software including source and object code, and other copyrightable materials incorporated in or displayed on the Product, is owned by Tosibox.  Tosibox reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Product.

5. RESTRICTIONS

The license granted to you in this EULA is subject to the following restrictions:

  • You will not abuse, hack, attack, interfere with, gain unauthorized access to, or disrupt the Product or do anything contrary to this EULA.
  • You will not access the Product in a way that could violate applicable law, or in any manner not expressly authorized by Tosibox under this EULA or in a separate written agreement.
  • You will not use the Product to infringe on the intellectual property or privacy rights of others, to obtain personal information or surveillance of others without authorization, or to otherwise violate applicable law.
  • You will use the Product in a prudent and responsible manner in keeping with the customary operation of other similar devices.
  • HAZARDOUS APPLICATIONS.  THE PRODUCT IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF A NUCLEAR FACILITY, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROLS OR OTHER DEVICES OR SYSTEMS IN WHICH A MALFUNCTION OF THE SOFTWARE WOULD RESULT IN FORSEEABLE RISK OF INJURY OR DEATH TO THE OPERATOR OF THE DEVICE OR SYSTEM OR TO OTHERS (“HAZARDOUS APPLICATIONS”).  YOU ASSUME ANY AND ALL RISKS, INJURIES, LOSSES, CLAIMS AND ANY OTHER LIABILITIES ARISING OUT OF THE USE OF THE PRODUCT IN ANY HAZARDOUS APPLICATIONS.

6. LIMITATIONS OF THE PRODUCT

While we aim for the Product (including any notifications or other alerts provided by the Product) to be highly reliable and available, it is not intended to be reliable or available 100% of the time, and we do not guarantee that you will always receive notifications.  The Product is subject to sporadic interruptions and failures for a variety of reasons beyond Tosibox’s control.  You acknowledge these limitations and agree that Tosibox is not responsible for any damages or injury allegedly caused by the failure or delay of the Product to reflect current status or notifications.  You further acknowledge that Tosibox does not guarantee that the Product will not be compromised or circumvented by third parties.

7. TERM & TERMINATION

This EULA and the license granted hereunder are effective on the date you first use the Product and shall continue for as long as you use the Product or until this EULA is terminated.  Tosibox may terminate this EULA at any time if you fail to comply with the terms of this EULA or of the other Tosibox Agreements.  You may terminate this EULA effective immediately upon written notice to Tosibox customer service at support@tosibox.com.  Upon termination of this EULA, the license granted hereunder will terminate and you must immediately stop using the Product.

8. UPDATES TO THE PRODUCT

You understand that the Product is an evolving one.  Tosibox may require that you accept updates to the Product, and may automatically update the Product at any time with or without notifying you. The updates to the Product may add new or remove existing functionality. By using the Product, you consent to these automatic updates.  You may need to update third party software from time to time in order to receive the Product and use Tosibox’s software and hardware.

9. INDEMNITY

You agree to indemnify and hold Tosibox, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners (the “Tosibox Parties”) harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Product, any violation by you of this EULA or any other Tosibox Agreement, or any breach of the representations, warranties, and covenants made by you herein.  Tosibox reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Tosibox Parties, and you agree to cooperate with Tosibox’s defense of these claims.  Tosibox will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

You agree that the provisions in this paragraph will survive any termination of your use of the Product.

10.       DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

a.  EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED IN THIS EULA OR IN THE PRODUCT WARRANTY, USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD).

b. YOU USE THE PRODUCTS AT YOUR OWN RISK, AND THE TOSIBOX PARTIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS.

c. NO ADVICE OR INFORMATION OBTAINED FROM THE TOSIBOX PARTIES OTHER THAN THE DOCUMENTATION PROVIDED WITH THE PRODUCTS SHALL CREATE ANY WARRANTY NOT STATED IN THIS EULA.

d. THESE LIMITATIONS OF LIABILITY EXTEND TO ALL CLAIMS, WHETHER KNOWN OR UNKNOWN, EXCEPT AS PROVIDED IN THIS EULA.  YOU ACKNOWLEDGE THAT YOU HAVE READ THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” YOU UNDERSTAND THAT SECTION 1542 GIVES YOU THE RIGHT NOT TO RELEASE EXISTING CLAIMS OF WHICH YOU ARE PRESENTLY UNAWARE, AND HAVING BEEN SO INFORMED, BY USING THE SERVICE YOU HEREBY WAIVE THE APPLICATION OF SECTION 1542 AND EVERY OTHER SIMILAR LAW IN EACH OTHER APPLICABLE JURISDICTION.

11. LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE TOSIBOX PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.  YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT TOSIBOX ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TOSIBOX LIABLE, FOR ANY LOSS RELATING TO:

UNFORESEEABLE CIRCUMSTANCES AND ACTS OF GOD;

ANY VIOLATIONS BY CUSTOMER OF ANY TERMS OF THE TOSIBOX AGREEMENTS.

12. EXCLUSIONS

NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES.  ACCORDINGLY, ONLY THOSE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.