Roomsys End User License Agreement
These terms and conditions (“Terms”) govern Your access to and use of the Roomsys Services (defined below) and set forth a legally binding agreement between you, the user account owner for the Roomsys Services (“You” and “Your”), and Roomsys LLC and its subsidiaries and affiliates (Collectively, “Roomsys,” “We,” and “Us”).
“Roomsys Services” means collectively, (1) the downloadable mobile, downloadable desktop, or browser-accessible web versions of the Roomsys application (“Software”), (2) the gateways, sensors and devices that connect to and interact with the Roomsys application (“Equipment”), (3) user accounts needed to access the Software (“User Accounts”), and (4) any related services provided in connection with the Software
PLEASE REVIEW THESE TERMS CAREFULLY PRIOR TO USING THE ROOMSYS SERVICES. BY ACCESSING OR USING THE SOFTWARE OR ROOMSYS SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF AND ANY PERSON OR ENTITY YOU ALLOW TO ACCESS YOU USER ACCOUNT OR THE ROOMSYS SERVICES (COLLECTIVELY, “USERS”)
YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF AND THE USERS. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE USERS.
THESE TERMS REQUIRE YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS, OR TO OPT OUT BY NOTIFYING US WITHIN 60 DAYS FROM THE DATE YOU FIRST ACCESS ANY OF THE ROOMSYS SERVICES.
1. User Accounts, Data and License
Subject to and conditioned on Your acceptance of, and compliance with these Terms, Roomsys grants You a non-exclusive, revokable, non-transferable, non-sublicensable license to access and use the Roomsys Services.
To access and use the Roomsys Services, You will need to create a User Account and confirm that you have read and agree to these Terms.
Roomsys Services require access to an internet data connection, which may be provided through Your local network. Roomsys uses this internet data connection solely to interact with the Roomsys system and application infrastructure.
All personal and usage data collected will be maintained and stored in accordance with the Roomsys Privacy Policy.
2. Roomsys Services Limitations
2.1 You acknowledge and agree the Roomsys Services, may be subject to sporadic interruptions and failures for a variety of reasons beyond Roomsys’ control, and that Roomsys will not be responsible for any damages or losses of any kind allegedly caused by the failure or delay of the Roomsys Services, Software, or Equipment. Roomsys cannot and does not guarantee that the Roomsys Services, Software, or Equipment, including remote access and mobile notifications will be 100% reliable and 100% available, or that any alerts messages, notifications, texts, or any other communication sent via the Roomsys Services will be accurate, timely, or successfully sent, delivered, or received.
2.2 You acknowledge and agree that the Roomsys Services, are not a monitored emergency notification system, and that Roomsys does not monitor emergency notifications, and will not dispatch emergency services to your property in the event of any emergency. Roomsys makes no warranty or representation that the Roomsys Services will affect or increase any level of safety or damage prevention.
2.3 The Roomsys Services are not designed, intended, or authorized for use in life support, life sustaining, or other applications in which the failure of such Roomsys Services could reasonably be expected to result in personal injury, loss of life or property damage. You acknowledge and agree the Roomsys Parties and their suppliers and licensors are not liable in whole or in part for any claim or damage based on or arising from any such use, and You agree to indemnify and hold the Roomsys Parties harmless from and against any and all claims, damages, losses, costs, expenses and liabilities based on or arising out of or in connection with any such use. YOU FURTHER AGREE TO NOT RELY ON THE ROOMSYS SERVICES, SOFTWARE OR EQUIPMENT FOR ANY SUCH LIFE SAFETY OR CRITICAL PURPOSES.
2.4 Temporary Suspension. The Roomsys Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances.
3. Restrictions and Responsibilities
3.1 You will not, directly or indirectly, alone or with another party:
copy, distribute, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Roomsys Services or Software;
sell, rent, lease, license, sublicense, resell or transfer access to the Roomsys Services, Software, or any intellectual property of Roomsys or its suppliers or licensors;
modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Roomsys);
remove any proprietary notices or labels;
allow or authorize anyone to do any of the foregoing; or,
allow or authorize anyone to use the Roomsys Services or Software, or Roomsys intellectual property in violation of this Agreement.
3.2 You represent, covenant, and warrant that You and the Users will use the Roomsys Services only in compliance with this Agreement and all applicable federal and state laws and regulations, including any applicable export laws.
Term and Termination
4. Intellectual Property Rights
4.1 Roomsys has and will retain the sole and exclusive rights, title and interest in and to: (a) the Roomsys Services, (b) the Software, (c) any software, applications, inventions or other technology developed in connection with the Roomsys Services or Software (d) new versions or future releases of the Roomsys Services or Software (e) any derivative works of or improvements, modifications or enhancements to any of the foregoing created or developed by or on behalf of Roomsys or on behalf of You, and (f) all Intellectual Property Rights related to any of the foregoing including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights, subject only to the rights of any disclosed third parties within any Open Source Software, and the limited license granted to You under this Agreement.
4.2 You acknowledge that You and the Users obtain only a limited license right to use the Roomsys Services and Software and that irrespective of any use of the words “purchase”, “sale” or like terms, no ownership rights are being conveyed to You or the Users under this Agreement or otherwise.
4.3 Nothing in these Terms grants any implied rights to You, including by implication, waiver, or estoppel, in any Intellectual Property Rights or other rights, title, or interest in any portion of the Roomsys Services.
5. DISCLAIMER OF WARRANTY
Roomsys shall use reasonable efforts consistent with prevailing industry standards to maintain the Roomsys Services in a manner which minimizes errors and interruptions, and shall perform the Services in a professional and workmanlike manner. HOWEVER, THE ROOMSYS SERVICES ARE PROVIDED FOR CONVENIENCE, “AS IS”, AND “AS AVAILABLE”, AND THE ROOMSYS PARTIES AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, AND/OR ANY WARRANTY WITH RESPECT TO THE SECURITY OF THE ROOMSYS SERVICES.
6. Insurance
You acknowledge and agree that Roomsys is not an insurer and shall not provide insurance coverage against any losses, as defined below. TO THE EXTENT YOU OR THE USERS WISH TO HAVE ANY INSURANCE COVERAGE FOR LOSSES, AS DEFINED BELOW, IT IS YOUR AND THE USERS’ RESPONSIBILITY TO PROCURE AND MAINTAIN SEPARATE INSURANCE POLICIES FROM AN INSURANCE COMPANY OR COMPANIES, SOLELY AT YOUR OWN COST AND EXPENSE, COVERING ALL LOSS, DAMAGE OR EXPENSE (COLLECTIVELY, "LOSSES"), INCLUDING ALL PROPERTY DAMAGE, PERSONAL INJURY (INCLUDING DEATH), ECONOMIC LOSSES OR ANY OTHER FORM OF LOSS, DAMAGE OR EXPENSE, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY :
(a) ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION ARISING HEREUNDER;
(b) ANY ROOMSYS SERVICES;
(с) THE USER ACCOUNTS;
(d) THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ROOMSYS;
(e) THE IMPROPER OPERATION OR NON-OPERATION OF THE SOFTWARE OR EQUIPMENT;
(f) deleted;
(g) BREACH OF WARRANTY, EXPRESS OR IMPLIED;
(h) PRODUCT OR STRICT LIABILITY;
(i) THE LOSS OR DAMAGE TO OR MALFUNCTION OF THE EQUIPMENT OR SERVICES NECESSARY TO OPERATE THE ROOMSYS SERVICES;
(j) A CLAIM FOR SUBROGATION, INDEMNIFICATION OR CONTRIBUTION;
(k) A VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF ANY ROOMSYS PARTY;
(l) A VIOLATION OF ANY LAW PROHIBITING THE INTERCEPTION OF ORAL COMMUNICATIONS BY ELECTRONIC MEANS;
(m) THE ACTIONS OF ANY THIRD PARTY IN RESPONDING TO AN ALARM FROM THE SOFTWARE;
(n) THE EQUIPMENT
(o) LOSS OF DATA
(p) THE SOFTWARE; OR,
(q) ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF YOUR DATA
(COLLECTIVELY, THE "COVERED CLAIMS").
RECOVERY FOR ANY LOSSES, AS DEFINED IN THIS SECTION 6, SHALL BE LIMITED TO THE INSURANCE YOU PURCHASE SEPARATELY FROM AN INSURANCE COMPANY, IF ANY.
7. LIMITATION OF LIABILITY AND RELEASE.
YOU AGREE TO RELEASE AND DO HEREBY RELEASE ROOMSYS, TOGETHER WITH ITS MEMBERS, MANAGERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (“COLLECTIVELY, “ROOMSYS PARTIES”), ON YOUR BEHALF AND ON BEHALF OF THE USERS FROM ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIMS, AS DEFINED IN SECTION 6. UNDER NO CIRCUMSTANCES WILL ANY OF THE ROOMSYS PARTIES BE RESPONSIBLE OR LIABLE TO YOU FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, DEATH OR DAMAGES TO PROPERTY, INCLUDING DAMAGES TO THE PREMISES STRUCTURE, HVAC SYSTEMS, PLUMBING, OR WIRING. NOTWITHSTANDING THE FOREGOING, EVEN IF ANY ROOMSYS PARTIES ARE FOUND LIABLE FOR ANY LOSSES, AS DEFINED IN SECTION 6, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIMS, AS DEFINED IN SECTION 6, ANY SUCH LIABILITY SHALL NOT EXCEED A MAXIMUM SUM OF $50 (FIFTY USD) AND THIS WILL BE YOUR ONLY REMEDY REGARDLESS OF WHAT LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, OR PRODUCT LIABILITY) IS USED TO DETERMINE LIABILITY FOR THE INJURY OR LOSS. UNDER NO CIRCUMSTANCES WILL ANY ROOMSYS PARTIES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF DATA, LOSS OF GOODWILL, OR LOSS OF ANTICIPATED SAVINGS.
8. INDEMNIFICATION
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT IF ANYONE OTHER THAN YOU (INCLUDING YOU’S INSURANCE COMPANY) ASKS ROOMSYS TO PAY FOR ANY LOSSES, AS DEFINED IN SECTION 6, INCLUDING, ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH, DUE TO, OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIMS, AS DEFINED IN SECTION 6, INCLUDING THE ACTIVE OR PASSIVE SOLE, JOINT OR SEVERAL NEGLIGENCE OF ANY KIND OR DEGREE OF YOU OR ANY ROOMSYS PARTY, YOU SHALL INDEMNIFY, DEFEND AND HOLD SUCH ROOMSYS PARTY HARMLESS (WITHOUT ANY CONDITION THAT ANY OF THEM FIRST PAY), FOR ALL LOSSES, AS DEFINED IN SECTION 6, INCLUDING ATTORNEYS' FEES, ASSERTED AGAINST OR INCURRED BY SUCH ROOMSYS PARTY.
ROOMSYS SHALL INDEMNIFY, DEFEND AND HOLD YOU HARMLESS FOR ALL LOSSES, AS DEFINED IN SECTION 6, INCLUDING ATTORNEYS' FEES, ASSERTED AGAINST, OR INCURRED BY YOU FOR ANY CLAIMS ARISING FROM OR RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY BASED ON YOU’S ACCESS TO OR USE OF THE ROOMSYS SERVICES OR SOFTWARE.
9. Release of Insured Losses; Waiver of Subrogation
You release Roomsys for all Losses covered by Your insurance policies and for all insurance deductibles. You also waive and release any subrogation and other rights You or Your insurance company may have against Roomsys for money paid to You or on Your behalf.
10. WAIVER OF JURY TRIAL.
ROOMSYS AND YOU EACH WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE OR LEGAL ACTION ARISING FROM OR CONNECTED WITH THESE TERMS.
11. Notices.
11.1 All notices required to be given to Roomsys under these Terms shall be deemed to have been received if in writing and sent either by reputable overnight carrier or by mail to Roomsys’ then current principal place of business
11.2 All notices required to be given to You shall be deemed to have been received if in writing and sent to the then current email address on file with Roomsys for your Account. You agree to update your email address on file with Roomsys in case of any changes.
12. General
12.1 Severability. Each section of these Terms shall stand independently and severally, and the invalidity of any one paragraph or portion thereof shall not affect the validity of any other provision. In the event any provision shall be construed to be invalid, no other provision of these Terms shall be affected. Furthermore, in the event that these Terms shall be brought before a court or arbitrator, it is agreed by the Parties that in the event of a finding of invalidity of any provision, such provision shall be reformed by said court or arbitrator to give effect to the intention of the Parties.
12.2 Assignment. These Terms are assignable by Roomsys, in whole or in part, at any time with or without notice to You. You may not assign your rights under these Terms, or any part of them, to any other person or entity. Any attempt to do so is void.
12.3 Entire Agreement. These Terms are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms,
12.4 Modifications. Roomsys reserves the right to change these Terms without prior notice. In the event that any changes are made, the revised terms will be posted immediately. Continued use of the Services following notice of such changes shall indicate acknowledgment by You and all Authorized Users of such changes and agreement to be bound by the revised Terms.
12.5 No Waiver. No failure or delay in exercising any right under these Terms will operate as a waiver of such right.
12.6 Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of these Terms and You do not have any authority of any kind to bind Roomsys in any respect whatsoever.
12.7 Force Majeure. Neither Party shall be liable to the other party for failure perform its obligations under the terms of these Terms because of strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or other similar events beyond the reasonable control of such Party.
12.8 Attorneys’ fees and costs. In any action or proceeding to enforce rights under these Terms, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees.
12.9 Not Construed Against Drafter. The interpretation of these Terms shall not be construed against the drafter.
12.10 Dispute Resolution and Governing Law. Any dispute arising under these Terms will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (“AAA”), in accordance with its relevant industry rules, if any. These Terms will be governed by and construed and interpreted in accordance with the laws of the State of New York without regard to its conflict of laws provisions. The arbitration will be held in New York City, NY. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce these Terms. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction. The Arbitrator is not empowered to award damages in excess of compensatory damages as set forth in these Terms. Except as otherwise stated in these Terms, any and all disputes required to be submitted to mandatory arbitration. In addition, the non-prevailing Party in a dispute agrees to pay any reasonable and direct damages and/or expenses that the prevailing Party may sustain as the result of a breach of any provision of these Terms, including any reasonable attorney’s fees and court costs incurred that arise from a breach of these Terms.
YOU HAVE THE RIGHT TO OPT OUT OF THE AGREEMENT TO ARBITRATE BY PROVIDING WRITTEN NOTICE OF YOUR INTENTION TO DO SO BY EMAILING WITHIN 60 DAYS OF THIS AGREEMENT BECOMING BINDING UPON YOU FOR THE FIRST TIME. PLEASE NOTE ANY COMMUNICATION MUST BE IN ENGLISH.