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AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES
(COLLECTIVELY THE “ECOBEE PARTIES”) BE LIABLE TO LICENSEE
OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL,
EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING WITH RESPECT TO LOSS OF, OR DAMAGE TO, DATA
OR COMPUTER SYSTEMS OR RELIANCE ON ANY DATA DERIVED
FROM LICENSEE’S USE OF THE SOFTWARE, OR LOSS OF REVENUE
OR PROFIT OR OTHER ECONOMIC LOSS) OF ANY KIND OR
NATURE WHATSOEVER SUFFERED BY LICENSEE OR ANY THIRD
PARTY HOWSOEVER CAUSED AND WHETHER RESULTING FROM
THE USE OF OR INABILITY TO USE THE SOFTWARE OR OTHERWISE
(INCLUDING
AS A RESULT OF OR DUE TO USE OF OR RELIANCE ON THE
SOFTWARE AND/OR ecobee WEB PORTAL) AND REGARDLESS OF
THE FORM OR CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE
FORESEEABLE OR ecobee HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. ECOBEE PARTIES’ TOTAL LIABILITY
AND OBLIGATION TO LICENSEE, IN THE AGGREGATE FOR ANY
AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH
THIS EULA, THE TERMS OF SALE IN CONNECTION WITH YOUR
PURCHASE OF THE PRODUCT AND YOUR USE OF
THE SOFTWARE AND PRODUCT, WITH RESPECT TO ANY EXPENSE,
DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS
OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING
FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR
OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES
SUFFERED AND SHALL NOT EXCEED AN AMOUNT THAT IS
EQUIVALENT TO THE PURCHASE PRICE OF THE ecobee PRODUCT
ACTUALLY PAID BY LICENSEE. THIS SECTION SHALL SURVIVE A
FUNDAMENTAL BREACH OR BREACHES AND/OR FAILURE OF THE
ESSENTIAL PURPOSE OF THE AGREEMENT.
13. Survival: The parties acknowledge and agree that the
provisions of Sections 2, 6, 7, 9, 11(b), 12, 13, 14, 15, 16 and 17
shall survive any termination of this EULA for any reason.
14. English Language: The parties declare that they have
required that this agreement and all documents related hereto,
either present or future, be drawn up in the English language
only. Les parties de clarent par les pre sentes qu’elles exigent que
cette entente et tous les documents y affe rents, soit pour le
pre sent ou le futur, soient re dige s en langue anglaise
seulement.
15. Jurisdiction: This EULA shall be exclusively governed by,
construed and interpreted 38 in accordance with the laws of
the Province of Ontario, Canada. For the purpose of all legal
proceedings this EULA shall be deemed to have been
performed in the Province of Ontario, Canada and the parties
expressly confirm that the law of the Province of Ontario is the
proper law. If Customer is located in a jurisdiction other than
Canada, the parties agree that neither the United Nations
Convention of the International Sale of Goods or the (U.S.)
Uniform Computer Information Transactions Act shall apply to
this EULA. The parties irrevocably attorn to the non- exclusive
jurisdiction of the Courts of the Province of Ontario in respect of
all matters and disputes arising hereunder.
16. Export Law Assurances: LICENSEE acknowledges that the
Software may be subject to export and import control laws, and
agrees to comply fully with those laws in connection with the
Software.
17. General Provisions: No delay or omission by ecobee to
exercise any right or power it has under this EULA or to object to
the failure of any covenant of LICENSEE to be performed in a
timely and complete manner, shall impair any such right or
power or be construed as a waiver of any succeeding breach
or any other covenant. Any waivers by ecobee must be in
writing and signed by an authorized representative of ecobee.
If any provision of this EULA is held by a court of competent
jurisdiction to be invalid or unenforceable in any respect, then
the remaining provisions of this EULA, or the application of
such provisions to persons or circumstances other than those as
to which it is invalid or unenforceable shall not be affected
thereby, and each such provision of this EULA shall be valid and
enforceable to the extent granted by law. The EULA constitutes
the entire agreement between the parties as it relates to the
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