END USER LICENSE AGREEMENT

By using the software (“Product Software”) that is embedded on the iTOMA product (“Product”) or checking a box or clicking a button confirming your agreement to these terms, you agree to the terms of this End User License Agreement (“EULA”) between you and iTOMA (“iTOMA” “we” or “us”). iTOMA products belongs to iTOMA COMPANY LIMITED. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE PRODUCT SOFTWARE AND YOU MAY CHOOSE TO PROMPTLY RETURN THE PRODUCT FOR A REFUND OF THE PRODUCT PURCHASE PRICE BY CONTACTING THE RETAILER AT WHICH YOU PURCHASED THE PRODUCT OR iTOMA COMPANY LIMITED. Your purchase of the Product (excluding the Product Software) is governed by the iTOMA limited warranty, the terms of which are provided with the Product. This EULA does not govern your Mobile Software, or your purchase of the Product (excluding the Product Software).

This EULA governs your access and use of the Product Software. This EULA gives you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this EULA will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this EULA may not apply to you.

THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE.

AS DESCRIBED BELOW, YOU MAY CONNECT YOUR PRODUCT TO THE SITE SERVICES AND ENABLE YOUR PRODUCT TO CONNECT TO THE INTERNET OR MOBILE DEVICE VIA A WIFI OR BLUETOOTH CONNECTION. BY CONNECTING YOUR PRODUCT TO THE SITE SERVICES AND CONNECTING YOUR PRODUCT TO THE INTERNET OR MOBILE DEVICE, YOU MAY CONSENT TO DO THE MANUAL UPDATES TO THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE TO UPDATES TO THE PRODUCT SOFTWARE, YOU SHOULD NOT CONNECT YOUR PRODUCT TO THE SITE SERVICES AND THE INTERNET.

AS DESCRIBED BELOW, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT SOFTWARE AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.

1. License.

Subject to the terms of this EULA, iTOMA grants to you a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal, non-commercial purposes.

2. Restrictions.

You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, (c) use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact iTOMA and provide iTOMA an opportunity to create such changes as are needed for interoperability purposes).

3. Software Updates.

The Product Software may cause the Product to communicate with the iTOMA’s servers to deliver the functionality described in the Product Guide, to record usage metrics. iTOMA may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve or otherwise modify the performance of the Product Software and related services (“Updates”). These Updates may affect or erase data on your Product or change or reset settings on your Product. These Updates may be installed on the platform of App Store or Google play or the other platforms by providing additional notice and receiving your additional consent if you have connected your Product to the Internet. If you do not want these Updates, please do not click the update button on the Apps stores. You acknowledge that you may be required to install Updates in order for the Product and Product Software to operate properly and to access all updated features of the Product Software. In certain circumstances you may be entitled to request removal or disabling of Updates (see contact information below); however, iTOMA is not responsible for providing support to Products that do not contain updated Product Software. If we provide further notice or request further consent to an Update, the notice or consent may be received or provided by any permitted user of the Product or the Site Services. The user receiving the notice or providing consent is responsible for notifying all other users. Your continued use of the Product is your agreement to this EULA.

4. Ownership.

The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of iTOMA and its licensors. iTOMA and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to iTOMA with respect to the Product Software shall be iTOMA’s property. iTOMA may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that iTOMA does not waive any rights to use similar or related ideas previously known to iTOMA, developed by its employees, or obtained from other sources.

5. Open Source.

Certain items of software included with the Product 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. If required by any license for particular Open Source Software, iTOMA makes such Open Source Software, and iTOMA’s modifications to that Open Source Software, available by written request to iTOMA at the email or mailing address listed below.

6. Term and Termination.

This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product, unless this EULA is terminated under this section. iTOMA 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 iTOMA. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software.

7. Warranty Disclaimer.

THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES AND THE EXCLUSION OR LIMITATION OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, iTOMA PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, NON-INTERFERENCE, SECURITY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. iTOMA DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. iTOMA MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND iTOMA DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HVAC SYSTEM, PLUMBING, HOME, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.

8. Limitation of Liability.

THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OR OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. Nothing in this EULA and in particular within this "Limitation of Liability" clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) iTOMA, ITS AFFILIATES, SUCCESSORS, ASSIGNS, LICENSORS AND SUPPLIERS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, (COLLECTIVELY, THE “iTOMA PARTIES”) BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF iTOMA KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) iTOMA’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO iTOMA OR iTOMA’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. iTOMA DISCLAIMS ALL LIABILITY OF ANY KIND OF iTOMA ’S LICENSORS AND SUPPLIERS.

9. Limitations of Product Software.

The Product Software provides you information (“Product Information”) regarding the Products in your home. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date.

10. Confidentiality.

“Confidential Information” shall mean the Product Software and all other information disclosed to you that iTOMA characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of iTOMA. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify iTOMA in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with iTOMA in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify iTOMA prior to such disclosure to allow iTOMA an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with iTOMA in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. You acknowledge that the Product Software contains valuable trade secrets and proprietary information of iTOMA, that any actual or threatened breach of this Section 10 or Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to iTOMA for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

11. Export Compliance.

The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold iTOMA Parties harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including legal fees and expenses) arising from or relating to any breach by you of your obligations under this section.

12. Governing Law; Venue.

The courts in some jurisdictions will not apply Illinois law to some types of disputes. If you reside in one of those jurisdictions, then where Illinois law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, 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 Illinois, 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 Cook County, Illinois and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that iTOMA may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.

13. Assignment.

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.

14. Notices.

Any notice to you may be provided by email to the address that you registered with iTOMA.

15. Severability.

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.

16. Waiver.

All waivers by iTOMA will be effective only if in writing. Any waiver or failure by iTOMA to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

17. General.

The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. iTOMA will have no responsibility to provide maintenance or support services with respect to the Product Software.

You acknowledge that the Product Software contains valuable trade secrets and proprietary information of iTOMA, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to iTOMA for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA.

Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties.

Questions or Additional Information. If you have questions regarding this EULA, please contact iTOMA at info@itoma.com.