IMPORTANT – READ CAREFULLY: This BRUVITI User Agreement (“Agreement”) is a legal contract
between you (either an individual or a single business entity) and K2 Power,
Inc., DBA Bruviti (“BRUVITI”). This Agreement governs the use of the BRUVITI
web-based application owned by BRUVITI and accessible through the Internet (the
“System”).
BY USING THE
SYSTEM, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND
BY ITS TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THE WARRANTY
DISCLAIMERS AND LIMITATIONS OF LIABILITY. IF YOU DO NOT AGREE TO THE TERMS OF
THIS AGREEMENT, YOU MAY NOT USE THE SYSTEM.
1.Grant
of License.Subject to the restrictions in this
Agreement, BRUVITI hereby grants to you a non-exclusive, non-transferable,
non-assignable, non-sublicensable limited right to access and use the object
code version of System through the Internet for your own personal, individual
use. BRUVITI reserves any rights not expressly granted herein.Any uses of BRUVITI reports, information,
data forms, or other materials (collectively, “BRUVITI Property”) not specifically authorized under this Agreement
are prohibited. Without limiting the foregoing, any use of BRUVITI Property for
commercial uses is expressly prohibited without prior written authorization of BRUVITI.
You shall be solely responsible for hardware, interconnections,
telecommunications and any other costs incurred in your access to or use of the
System.
2.License
Restrictions.You may not: (a) copy the System or any
software, programming or documentation related thereto; (b) permit other
individuals or companies to use the System; (c) use the System for the benefit
of any third party; (d) modify, translate, reverse engineer, decompile,
disassemble or create derivative works based upon the System or any software or
programming related thereto; (e) rent, lease, transfer, resell and/or or
otherwise transfer rights to the System; or (f) delete or write over any
portion of any software relating in any manner to the System.You also agree that you shall only use the
System in a manner that complies with all applicable laws in the jurisdictions
in which you use the System, and that you shall not violate or infringe the
rights of any third party.Any such
forbidden use shall immediately and automatically terminate your license to use
the System without notice.
3.Data Ownership. All data, including but not limited to user-generated data, metadata,
logs, and backups, created or accumulated by you or on your behalf as a result
of using the System ("User Data") shall be the exclusive property of
BRUVITI. You hereby grant to BRUVITI a perpetual, worldwide, unrestricted,
irrevocable license to use, copy, modify, distribute, sell, and otherwise
exploit the User Data for any purpose, subject to BRUVITI’s Privacy Policy. You
also agree that BRUVITI may use your User Data to improve our services, develop
new products and services, understand and analyze usage trends and preferences,
and personalize the System’s features, performance, and support, and for any
other purpose permissible under applicable laws. You represent and warrant that
you have obtained all necessary rights and consents to grant this license to
BRUVITI.
4.Term
and Termination.This Agreement is
effective upon the earlier of your clicking the button marked “I Agree” or your
first use of the System and shall continue until terminated.Either party may terminate this Agreement
upon written notice of termination to the other party. Upon any termination or expiration of this
Agreement, you shall immediately discontinue use of the System.Should you have made or been provided with
any copies of the System or any BRUVITI Property, you shall promptly return to BRUVITI
all such copies then in your possession and permanently delete all such copies
from your computer. Sections 2, 3, 5, 7, 8, 9, 10, 11, and 12 shall survive the
termination or expiration of this Agreement.
5.User
Name and Password.You will create a user name and password that
may be used to access the System.You
are fully responsible for maintaining the confidentiality of your user name and
password and all activities that occur under your user name and password.Your user name and password are for your use
only.You agree to immediately notify BRUVITI
by e-mail at info@bruviti.com of any unauthorized use of your password or
account or any other breach of security.]
6.Proprietary
Rights.The System, including, without limitation,
any of BRUVITI’s Internet operations, design, content, hardware designs,
algorithms, programming, underlying software (in source and object forms), user
interface designs, other templates and designs, algorithms, architecture, class
libraries, and documentation (both printed and electronic), know-how, goodwill,
moral rights, trade secrets and any related intellectual property rights
throughout the world, and any derivative works, improvements, modifications,
enhancements or extensions thereof shall remain the sole and exclusive property
of BRUVITI, and you shall have no interest in them whatsoever.
7.User
Conduct.Your use of the System is subject to all
applicable local, state, national and international laws and regulations.
8.Indemnification.You agree to
immediately notify BRUVITI of and indemnify, defend and hold harmless BRUVITI,
its affiliates, and their respective officers, employees and representatives from
any and all claims and demands, including attorneys’ fees, made by any third
party due to or arising out of your use of the System (including the
unauthorized use of your account or any other breach of security known to you),
the violation of this Agreement by you, or the infringement by you, or another
user using your computer, on any intellectual property or other right of any
person or entity.
9.Disclaimer
of Warranties.You agree that use of the
System is at your sole risk.The System
are provided on an “as is” and “as available” basis, and BRUVITI assumes no
responsibility for the timeliness, deletion, mis-delivery or failure to store
any of your communications, data, or personalization settings. All warranties
of any kind are hereby disclaimed, whether express or implied, including, but
not limited to the implied warranties of merchantability, fitness for a
particular purpose, non-infringement, quiet enjoyment, title, merchantability
of computer programs and informational content. No advice or information,
whether oral or written, obtained by you through the System or third party
shall create any warranty not expressly made herein. In no event, does BRUVITI
warrant that (A) the System is error free, OR (B) that You will be able to
operate the System without problems or interruptions. In addition, due to the
continual development of new techniques for intruding upon and attacking
networks, BRUVITI does not warrant that the System will be free of
vulnerability to intrusion or attack.
10.Limitation
of Liability.IN NO EVENT SHALL LICENSOR
BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOST
REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT,
TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF LICENSOR HAS BEEN INFORMED
OF THE POSSIBILITY THEREOF. In no event shall the total and aggregate liability
of LICENSOR under this Agreement for any cause of action or reason whatsoever
exceed $100.Your sole and exclusive
remedy under this Agreement is to discontinue the use of the System.
11.Notices.Unless otherwise provided herein, notices given by BRUVITI to you will
be given by e-mail or by conventional mail.Notices will be sent to the e-mail address or mailing address you
provide to BRUVITI, or to updated addresses which you provide to BRUVITI via
notice consistent with this paragraph.Notices given by you to BRUVITI must be given byUnited
States mail, certified or registered, return receipt requested or confirmed
private commercial overnight courier service; provided that, in each case, such
notice is properly addressed or transmitted to the following address or to such
other address as BRUVITI may provide to you in accordance with this provision: Bruviti,
1901 S. Bascom Ave., Campbell, CA 95008.Notwithstanding anything herein to the contrary, it is your sole
responsibility to update your address for notices hereunder, and notice sent to
the e-mail or conventional mailing address last provided by you to BRUVITI
shall be valid and binding on you regardless of whether such address has been
changed, canceled, has expired, has been terminated, or otherwise becomes
inoperative.
12.Governing
Law.This Agreement shall be governed by and
construed in accordance with the laws of the State of California
notwithstanding any conflict of laws provisions.You irrevocably and unconditionally: (i)
consent to submit to the exclusive jurisdiction of the state and federal courts
of California (“California Courts ”) for any litigation or controversy
arising out of or relating to this Agreement, (ii) agree not to commence any
litigation arising out of or relating to this Agreement except in California
Courts and (iii) agree not to plead or claim that such litigation brought
therein has been brought in an inconvenient forum.
13.General.If any
provision of this Agreement is held by a court of competent jurisdiction to be
contrary to law, then such provision shall be construed, as nearly as possible,
to reflect the intentions of the parties with the other provisions remaining in
full force and effect.Any failure to
exercise or enforce any right or provision of this Agreement shall not
constitute a waiver of such right or provision unless acknowledged and agreed
to in writing.The section titles in
this Agreement are solely used for the convenience of the parties and have no
legal or contractual significance.This
Agreement may be assigned in whole or in part by the BRUVITI.This Agreement may not be assigned in any
manner by you without the express, prior written permission of the BRUVITI.