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TERMS & CONDITIONS

BY CHECKING IN THE BOX BELOW AND/OR USING iSMART ALARM, INC.’S PRODUCTS, DEVICES AND APPS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ANY AMENDMENTS OR UPDATES. YOU SPECIFICALLY ACKNOWLEDGE YOU HAVE READ THE ENTIRETY OF THIS AGREEMENT AND UNDERSTAND ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, PARAGRAPH 2, LIMITATION OF LIABILITY, PARAGRAPH 3, NO WARRANTY, AND PARAGRAPH 4, INDEMNIFICATION AND SUBROGATION WAIVER. THIS VERSION OF TERMS & CONDITIONS IS EFFECTIVE ON March 15, 2015.

 

IMPORTANT TERMS AND CONDITIONS

 

1.         Definitions. This paragraph shall define certain terms as used throughout this Agreement. “Agreement” shall refer to this Agreement. “Product” or “iSmartAlarm system” shall mean the iCamera, iCamera Keep, CubeOne, Remote Tags, Motion Sensors, Contact Sensors, Smoke Detectors, Siren and applications (“apps”) You purchased, acquired, or use.  “Premises” shall refer to the location where You chose to use the Product.  “Company” and/or “iSmartAlarm” shall refer to and include iSmartAlarm, Inc., its owners, directors, officers, shareholders, partners, subcontractors, independent contractors, employees, distributors, retailers, agents, and assigns. “You” and “Your” shall refer to the individual(s) who purchase, acquire and/or use the Product, download the app, and/or execute this Agreement. “Product Sensor(s)” shall mean the Motion Sensors, Contact sensors, Siren and smoke detectors which are part of the iSmartAlarm system.

 

2.         LIMITATION OF LIABILITY, WAIVER, AND LIQUIDATED DAMAGES.  It is understood and agreed:  iSMARTALARM AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, SUBCONTRACTORS, DISTRIBUTORS, RETAILERS, AGENTS AND INDEPENDENT CONTRACTORS ARE not insurers nor is this agreement intended to be an insurance policy or a substitute for an insurance policy.  YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCT DOES NOT OFFER GUARANTEED PROTECTION AGAINST BURGLARY, ROBBERY, THEFT, Property damage, Fire, Smoke, BODILY INJURY OR ANY OTHER TYPE OF EMERGENCY or damage.  you ARE SOLELY RESPONSIBLE FOR DETERMINING YOUR INSURANCE NEEDS, AND PURCHASING ANY NECESSARY INSURANCE. yOU agree to look solely and exclusively to your insurer to recover all loss, damage, or expense DUE TO LOSS AND/OR DAMAGE TO YOUR PERSONAL PROPERTY OR REAL PROPERTY ALLEGEDLY CAUSED  BY THE PRODUCT. You also agree to look solely and exclusively to your insurer in response to any claim for bodily injury, Property Damage, personal injury, and/or invasion of privacy ALLEGEDLY CAUSED BY THE PRODUCT, including claims made by or against you.  yOU HEREBY RELEASE iSMARTALARM from ANY AND all loss, damage, and/or expense which may occur as a result of Your use, Misuse, or attempted use, of the product, including, but not limited to, the FAILURE OF THE PRODUCT to perform, YOUR alleged failure to comply with any relevant rule, statute, code, law or ordinance, and any act or omission of iSMARTALARM.

 

YOU acknowledge that it is impractical and extremely difficult to fix the actual damages, if any, which may proximately result from a FAILURE OF THE product, because, among other things: (a) The amount or value of property on the premises which may be lost, stolen, destroyed, damaged or otherwise affected by a failure of the product is uncertain; (b) The amount of possible damages for Bodily injury or death is Uncertain; (c) what portion, if any, of any loss and/or Damage was proximately caused by the failure of the product is uncertain; AND, (D) The nature of the incidents the Product is meant to alert you to are unpredictable.

 

YOU understand and agree that YOUR recovery of damages against iSMARTALARM for any failure of the product, or any act or omission of iSMARTALARM, is limited to THE AMOUNT YOU PAID FOR THE PRODUCT.  IN NO EVENT WILL iSMARTALARM BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS OR INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF YOUR USE OR INABILITY TO USE THE PRODUCT OR THE BREACH OF THIS AGREEMENT, EVEN IF iSMARTALARM  is ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ThE limitation of liability to the price YOU paid for the product ESTABLISHES iSMARTALARM’s exclusive liaiblity to you, and applies where iSMARTALARM is alleged to be, or is found liable for, any Bodily injury, death, property loss, INVASION of privacy, or damage, INCLUDING, WITHOUT LIMITATION, ANY GENERAL, DIRECT, indirect, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGE, resulting from any alleged failure of the Product.   this limitation of liability shall apply irrespective of cause and regardless of whether such lawsuit or other claim is based upon active or passive negligence, breach of express or implied contract or warranty, contribution, indemnification, strict or product liability, failure to comply with any applicable law, or any other fault or failure of iSMARTALARM, or the product.  YOU ACKNOWLEDGE AND AGREE THAT: (1) YOU HAVE THE OPPORTUNITY TO modify THIS LIMITATION OF LIABILITY BY CONTACTING iSMARTALARM AND NEGOTIATING FOR iSMARTALARM’S ASSUMPTION OF greater liability; (2) this limitation of liability does not conflict with any other provision in this Agreement; and, (3) this limitation of liability provision does not render any other provision in this agreement ambiguous.

 

Without limiting any portion of this section, YOU hereby further release iSMARTALARM from any and all loss, damage and/or expense and accept full responsibility for any loss, damage and/or expense caused by the deactivation OF PRODUCT SENSORS OR the creation of A PROFILE OF SPECIFIC PRODUCT SENSORS, some activated, some deactivated, to arm the product, and acknowledge that by deactivating any product sensor, either individually or through a profile of specific product sensors, YOU will not, even with the Product armed, receive alerts from the Product if, for example, a BREAK-IN occurs THROUGH a door or window with a DEACTIVATED SENSOR attached.

 

3.         Limited WARRANTY.  iSMARTALARM warrants the PRoduct against defects in materials and workmanship when used as instructed by iSMARTALARM’s user manual for a period of ONE (1) YEAR from Your date of purchase.  This WARRANTY is NULL AND VOID IF PHYSICAL DAMAGE occurs to the Product in ANY WAY, INCLUDING BUT NOT LIMITED TO: REMOVAL or REPLACEMENT OF ELECTRONIC COMPONENTS, INCORRECT BATTERY USAGE, REMOVAL OF DEVICE SHELL or casing, ACCESSing the INTERIOR of the product with the exception of battery replacement in compliance with THE OWNER’S MANUAL, and/or any attempt to circumvent or alter the product’s prescribed operation.

 

TO THE EXTENT PERMITTED BY local LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. ismartalarm DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW.  To the extent SUCH WARRANTIES CANNOT BE DISCLAIMED, ismartalarm LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT ismartalarm'S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED BELOW.

 

ismartalarm'S limited warranty covers only those defects arising from normal use of the product and does not cover any other problems, including those arising from: (1) improper maintenance; (2) software, media, parts or supplies not provided or supported by ismartalarm; (3) operation outside the product’s specifications; (4) abuse of the product; (5) normal wear and tear; or, (6) unauthorized modification, alteration, or misuse.

 

4.         Indemnification AND SUBROGATION WAIVER. In the event that any lawsuit or other claim is filed or made by any third party against iSMARTALARM which is based on or arises out of the product, including, but not limited to claims and lawsuits alleging THE PRODUCT failed to perform IN ANY RESPECT WHATSOEVER, YOU agree to be solely responsible for and shall indemnify, save, defend, and hold iSMARTALARM harmless from and against all such claims including payment of all iSMARTALARM’s damages, expenses, costs, and attorneys’ fees INCURRED IN RESPONSe to the claim or lawsuit. These obligations apply irrespective of cause and regardless of whether such lawsuit or other claim is based upon active or passive negligence, breach of express or implied contract or warranty, contribution, indemnification, strict or product liability, failure to comply with any applicable law, or any other fault or failure of iSMARTALARM, OTHERS or the product.  YOU agree to indemnify, save, defend, and hold iSMARTALARM harmless from all claims and/or lawsuits for subrogation which may be brought against iSMARTALARM by any insurer or insurance company or its agents or assigns including the payment of all iSMARTALARM damages, expenses, costs, and attorneys’ fees. YOU HEREBY WAIVE ALL CLAIMS FOR RECOVERY AGAINST iSMARTALARM FOR ANY LOSS OR DAMAGE TO ANY PROPERTY OR LOSS INSURED UNDER VALID OR COLLECTIBLE INSURANCE POLICIES. THIS WAIVER OF SUBROGATION RIGHT SHALL EXTEND TO ALL FORMS OF SUBROGATION, INCLUDING, BUT NOT LIMITED TO, EQUITABLE AND CONVENTIONAL SUBROGATION, AND SHALL BE BINDING ON ANY AND ALL ASSIGNEES OR SUBROGEES OF YOUR RIGHTS. In no event may You enter into any settlement or like agreement with a third party that affects iSmartAlarm’s rights or binds iSmartAlarm in any way, without iSmartAlarm’s prior written consent.


5.         Installation and Use. You acknowledge and agree that the Product is a do-it-yourself product, and You are solely responsible for decisions related to the installation and use of the Product, including, but not limited to, the proper installation of the Product, selection of the location for the Product, confirmation that the Product is properly installed, deactivation of any Product Sensor to arm the iSmartAlarm system, making a profile of Product Sensors to arm the iSmartAlarm system which includes both activated and deactivated Product Sensors, testing the Product, ensuring that the Product is working, and compliance with all relevant rules, laws, statutes, codes, regulations, and/or ordinances.  You acknowledge and agree that: (1) the Product does not provide traditional monitoring services; (2) neither iSmartAlarm, nor anyone retained on its behalf, monitors signals or notifications triggered by the Product, including, but limited to, Motion Sensors, Contact Sensors, iCamera, iCamera Keep, Siren or Smoke Detectors; and, (3)  You are solely responsible for responding to any applicable signals and notifications such as push notifications, pre-recorded phone call notifications, SMS notifications or E-mail notifications, including contacting the appropriate authorities.  You acknowledge and agree that You are not relying on iSmartAlarm to install, repair, maintain, or monitor the Product, and agree and acknowledge that iSmartAlarm cannot, and does not, ensure that the Product is installed or used correctly or in compliance with any applicable rules, laws, statutes, codes, regulations, and/or ordinances.  It is solely Your obligation to advise iSmartAlarm if there is an issue with the Product, and You, without limiting other releases in this Agreement, hereby release iSmartAlarm from any damages, losses or expenses resulting from or as a consequence of issues related to the installation or use of the Product. 

 

6.         Additional Customer Duties, Responsibilities and Warranties.  (A) Without in any way limiting the terms of Section 2, You acknowledge and agree that: (1) it is Your sole responsibility to comply with all rules, laws, statutes, codes, regulations, and/or ordinances, local, state, and federal, relevant to the use of the Product, including, but not limited to, those related to privacy rights, video recording, eavesdropping, surveillance, and obligations of alarm users; (2) the Product is for Your own use and not for the benefit of any other party; and, (3) it is your responsibility to generate as comprehensive a password as possible to avoid being hijacked, and protect the password required to access Your account and the associated apps. (B) You acknowledge and agree that pursuant to Sections 2 and 4 of this agreement, You agree to waive any and all claims against iSmartAlarm, and agree to fully defend and indemnify iSmartAlarm, in response to any claim, demand and/or lawsuit arising out of (1) loss caused by unauthorized access to Your account, including, but not limited to the misplacement of Your password, loss of Your Password, or hijacking of Your password by unauthorized persons; and, (2) Your failure to comply with any rules, laws, statutes, codes, regulations, and/or ordinances, local, state, or federal, relevant to the use of the Product, including, but not limited to, those related to privacy rights, video recording, eavesdropping, surveillance, and obligations of alarm users.

 

7.         Additional Equipment. If, at any time after the date hereof, You purchase additional Product, all sales are subject to the terms of this Agreement, including, but not limited to Sections 2, 3, 4 and 19.  Any added features, hardware, or software to the Product, either purchased by You or obtained through software and/or firmware updates, are subject to all terms and conditions to this Agreement, including, but not limited to Sections 2, 3, 4, and 19.

 

8.         Limitations of Product. You acknowledge and agree that all alarm systems, including the Product, are subject to compromise or failure for reasons outside the control of the manufacturer, retailers and distributors, including, but not limited to: (a) Your misuse of the Product; (b) the ability of an intruder to gain access through a protected or unprotected opening; (c) an intruder’s technical sophistication enabling the intruder to bypass individual sensors or the entire system; (d) signals sent by the Product may be blocked or reflected before being received; (e) a motion sensor’s ability to detect an intrusion is limited to the designed ranges and unobstructed areas, and can be interfered with by other IR (infrared) signals; (f) deactivation of a Product sensor(s) to arm the iSmartAlarm system, either motion or contact; (g) the Product, like any electrical system, is subject to component failures; (h) the Product’s need for continued power, through battery and/or AC power; and, (i) the Products ability to function, including but not limited to applicable automated phone alert, short message service (“SMS”) alert and E-mail alert, may be compromised by malfunction of routers, limited services by wireless phone carriers, internet service providers (“ISP”) and other related service providers, internet connection dropout, limited speed of high-speed internet by ISP, limited service such as iMessage or other types of push notification provided by smartphone maker(s) or providers. It is Your responsibility to properly set up and maintain the alert phone number list and notification Email in the iSmartAlarm App and ensure listed accounts are active, including but not limited to the ability to receive applicable phone calls, SMS alert, and Emails alert; Phone calls, SMS alerts and Email alerts may be subject to charge by Your service provider depending on Your plan with Your cell phone provided.  It is solely Your responsibility to pay for any charges incurred if You choose to add Your phone number or Email address in the notification list in the iSmartAlarm App.

 

You understand, acknowledge, and agree that: (1) the amount of iSmartAlarm cloud storage associated with Your iCamera Keep is limited to five minutes total; (2) when the five minute limit is reached, data, including video, will be automatically overwritten, with the oldest content continually overwritten by the newest content; (3) there is no data or video backup or restoration available, and when overwritten the video and/or data is irretrievable.  No further notice of the overwriting of data and/or data will be provided.  

 

9.         Transmission of Data.  You understand and acknowledge the following: (a) the Product may transmit data to You through use of one or more forms of communication equipment or services, including, without limitation, a telephone network or some form of wireless communications (e.g., cellular or another form of radio transmission); (b) some or all of these communications equipment or services may access or incorporate the Internet, electric company lines, a local area network or some other form of computer network to transmit or retrieve data; (c) for data transmitted by a telephone network, there are various types of telephone line service including, without limitation, a Company-owned or operated network facility, direct wire, derived channel, multiplex, DSL, T-1, ISDN and various other forms of service; (d) for data transmitted by a wireless communications service or equipment, such services and equipment are problematic by their nature and can be affected or delayed by interference, atmospheric conditions, static, transmission system operation, etc.; and (e) for data transmitted or received via electric company power lines, the telephone company, the Internet or by any form of computer network, the Product’s ability to transmit or receive data will be dependant upon the electric company, Internet, Internet providers or computer network.  Accordingly, You understand, acknowledge and agree that the Product is not infallible and the transmission and receipt of data, including, but not limited to video data, from the Product, regardless of the type of transmission used, may be interrupted, circumvented, or otherwise compromised, and, because ensuring proper transmission is outside of iSmartAlarm’s control, You are solely responsible for ensuring proper transmission. You understand, acknowledge, and agree that: (i) the Product including, without limitation, the iCamera, iCamera Keep, CubeOne, Smoke Detector, Siren, Remote Tags, Motion Sensors, and Contact Sensors, as well as all future devices, are not supervised or monitored by anyone besides You; and, (ii) if the Product is incompatible, inoperative, or interrupted by any natural or human cause including, without limitation, any sort of interference, or the loss of a telephone line or dial tone (either because the line is cut, left off the hook, or otherwise), only You are responsible for ensuring the Product is working correctly; iSmartAlarm will not have any knowledge of a malfunction or misuse of the Product.

 

10.       iSmartAlarm’s Default. In the event of any breach of this Agreement by iSmartAlarm, You agree to provide written notice to iSmartAlarm specifically identifying the nature of the breach and the provisions of this Agreement affected thereby, and to permit iSmartAlarm to cure the breach within twenty (20) business days after receipt of the written notice. If the breach cannot be reasonably cured within said period, iSmartAlarm will promptly commence to cure and diligently proceed until cured. If iSmartAlarm cures any said breach as provided herein, this Agreement shall continue uninterrupted and iSmartAlarm shall not be liable to YOU for any said breach.

 

11.       Consent to Record, Disclose And Use Contents of Communications. You, as the owner and/or user of the Product, agree and acknowledge that it is solely: (1) Your responsibility and obligation to obtain any consent required by the jurisdiction in which You use the Product to record, retrieve, review, copy, disburse, disclose, interact through, or use the contents of any and all transmission, communication, or recording, video or photograph, obtained by the Product; and, (2) to comply with all relevant rules, laws, statutes, codes, regulations, and/or ordinances. Without limiting the provisions of Sections 2 and 4, You agree to fully and completely defend and indemnify iSmartAlarm for any claim arising out of Your alleged improper use of the Product and/or Your failure to comply with Your legal obligations as user of the Product.

 

By using Your iCamera Keep, You authorize iSmartAlarm to maintain video data recorded from Your iCamera Keep on the iSmartAlarm cloud.  iSmartAlarm shall use commercially reasonable efforts to prevent unauthorized access to Your recordings maintained on the iSmartAlarm cloud.  However, You acknowledge, understand, and agree that as a result of issues unrelated to iSmartAlarm’s fault, including the inherent limitations in all hardware and software, unauthorized access to Your recorded video data may occur.  As result, in addition to, and without limiting any other provision of this Agreement, You agree to and shall indemnify and hold harmless iSmartAlarm, its employees and agents for and against all claims, lawsuits and losses arising out of or related to video data recorded from Your iCamera Keep and iSmartAlarm’s storage of that video data.  This provision shall apply to all claims, lawsuits or losses whether or not based on negligence (active or passive) on the part of iSmartAlarm, its agents or employees.

 

12.       Exclusions and Limitations.  Nothing in this agreement is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited.  Certain jurisdictions do not allow the exclusions of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by gross negligence, breach of contract, intentional acts, breach of implied terms, or incidental or consequential damages.  Accordingly, only the limitations in Sections 2, 3, 4 and 19 of this Agreement which are lawful in the jurisdiction in which the use of the Product gives rise to the alleged damage or loss will apply to You and our liability will be limited to the maximum extent permitted by law.

 

13.       Entire Agreement. The Terms of this Agreement (including any policies, guidelines or amendments that may be presented to You from time to time such as Policies and Legal Notices) constitute the entire agreement between You and iSmartAlarm and govern Your use of the Product, superseding any prior agreements between You and iSmartAlarm for the use of Product.

 

14.       Choice of Law and Forum. For purposes of any suit, action or other legal proceeding arising out of or from, in connection with or relating to this Agreement and/or the Product, You and iSmartAlarm irrevocably consent and submit to the exclusive jurisdiction and venue of any state or federal court sitting within Santa Clara County, California.  The laws of the State of California, excluding its conflicts of law rules, govern this Agreement and Your use of the Product. You and iSmartAlarm waive any objection that either may have to jurisdiction or venue of any such suit, action or other legal proceeding. 

 

15.       Waiver and Severability of Terms. The failure of iSmartAlarm to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the specific provision at issue, and the other provisions of the Agreement remain in full force and effect.

 

16.       Statute of Limitations.  You agree that regardless of any statute or law to the contrary, all claims, actions, requests, or proceedings against iSmartAlarm must be commenced in court within one (1) year from the date of the event that resulted in the injury, death, property loss, or damage.

 

17.       No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement, there shall be, and are, no third party beneficiaries to this Agreement.

 

18.       Limit on Number of Phone Alerts and SMS Alerts per Calendar Month.   This limit only applies to users from contiguous US (plus Alaska and Hawaii) and Canada. You acknowledge and agree that to prevent potential misuse of the Product, Your purchase of the Product provides You thirty (30) phone alerts and thirty (30) SMS alerts per calendar month.  You will receive a notification from iSmartAlarm when You approach the limit.  If additional phone alerts and/or SMS alerts for the remaining calendar month are desired, contact iSmartAlarm customer service to discuss Your usage.  If iSmartAlarm, in its full and complete discretion, determines that Your use is not an abuse or misuse of the alerts, iSmartAlarm will assign an additional thirty (30) alerts available for the remaining calendar month.  However, if iSmartAlarm determines that Your usage misused or abused the phone and/or SMS alerts, Your usage will be limited to thirty (30) phone alerts and thirty (30) SMS alerts for that calendar month. You acknowledge and agree that activating the panic button, either on the Remote Tag and in the iSmartAlarm App, will immediately set off the system and You may receive a phone alert, SMS alert and Email alert on the later version of iSmartAlarm (subject to change without notice), all of which are counted toward Your monthly limit of 30 phone alerts and 30 SMS alerts.

 

19. Limit on Type Of Alert Notifications. You acknowledge and agree that the European version of Product (UPC# 858176004120) will only be used in Europe and will only provide E-mail and push notifications, and WILL NOT provide phone alerts or SMS alerts. You acknowledge and agree that US/Canada version of Products (UPC# 858176004007 and UPC# 858176004038) only work in Contiguous US (plus Hawaii and Alaska) and Canada.

 

20.       SDK and API Terms and Conditions.

 

            A.        LIMITATION OF LIABILITY, WAIVER AND LIQUIDATED DAMAGES.  SECTION 2 OF THIS AGREEMENT, LIMITATION OF LIAIBLITY, WAIVER AND LIQUIDATED DAMAGES, APPLIES FULLY AND EQUALLY TO PRECLUDE CLAIMS AGAINST iSMARTALARM ARISING OUT OF OR RELATED YOUR USE OR INABILITY TO USE iSMARTALARM’S SOFTWARE DEVELOPMENT KIT (“SDK”) AND/OR THE APPLICATION PROGRAMMING INTERFACE (“API”), OR YOUR DEVELOPMENT EFFORTS, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF iSMARTALARM HAS BEEN    ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL iSMARTALARM’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES EXCEED THE AMOUNT YOU PAID FOR THE PRODUCT.  YOU ACKNOWLEDGE AND AGREE THAT YOU HAD THE OPPORTUNITY TO modify THIS LIMITATION OF LIABILITY BY CONTACTING iSMARTALARM AND NEGOTIATING FOR iSMARTALARM’S ASSUMPTION OF greater liability. 

 

            B.        NO WARRANTY.  The SDK and API may contain inaccuracies or errors that could cause failures or loss of data and   they may be incomplete. In no event will iSmartAlarm be liable for the removal of or disabling of access to its App(s).  iSmartAlarm may also impose limits on the use of or       access to its SDK and/or API, without notice or liability. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SDK AND API AND RELATED SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE SDK AND API SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND       WITHOUT WARRANTY OF ANY KIND, AND iSMARTALARM HEREBY            DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SDK AND API SERVICES, EITHER EXPRESS, IMPLIED OR      STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD PARTY     RIGHTS. iSMARTALARM DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SDK AND/OR API,  THAT THE SDK AND API WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SDK AND/OR API WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE SDK AND/OR API WILL BE CORRECTED, OR THAT THE SDK AND/OR API WILL BE  COMPATIBLE WITH FUTURE iSMARTALARM PRODUCTS OR SOFTWARE. SHOULD THE SDK AND/OR API PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.           

 

            C.        INDEMNIFICATION.  You agree to indemnify, defend and     hold harmless iSmartAlarm, its directors, officers,        employees, retailers, distributors, independent

contractors, and agents from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation attorneys’ fees and court costs) incurred by iSmartAlarm as a result of any claims that Your Applications violate or infringe any third party intellectual property or proprietary rights, or otherwise related to or arising from Your use of the SDK, API, Your Application(s) or Your development of applications. You acknowledge that the SDK and API are not intended for use in the development of applications in which errors or inaccuracies in the content, data or information provided by the application or the failure of the application could lead to death, personal injury, or severe physical or environmental damage, and, to the extent permitted by law, You hereby agree to indemnify, defend and hold harmless iSmartAlarm from any Losses by reason of any such use.  In no event may You enter into any settlement or like agreement with a third party that affects iSmartAlarm’s rights or binds iSmartAlarm in any way, without iSmartAlarm’s prior written consent.

 

Sections 19(a)(b) and (C) are in addition to the terms and provisions contained in sections 2, 3 and 4 of this agreement, and are not intended to, and do not, Waive, limit, or supercede sections 2, 3, or 4 which apply equally to the use of ismartalarm’s SDK and Api.

 

21.       Binding Agreement; Amendments; General Legal Matters. This Agreement becomes binding when You purchase the Product.  The headings used herein are for the convenience of the parties only and shall not be considered in construing the provisions of this Agreement. Should any term, provision, or condition of this Agreement, or the application thereof shall be held to be invalid, unenforceable or void, the remainder of this Agreement and such term, provision, or condition as applied shall remain in full force and effect. Changes or amendments to this Agreement must be in writing and signed by iSmartAlarm and You to be binding. This Agreement is binding on Your heirs, executors, administrators, and successors, and shall be governed by and construed according to the laws of the State of California without reference to its conflicts of law rules.  The interpretation of this Agreement shall not be construed against the drafter.