END USER LICENSE AGREEMENT – GENERAL TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING NONEXCLUSIVE LICENSE AGREEMENT BEFORE USING NAVIEN’S APP OR BEGINNING YOUR USE OF NAVIEN’S SERVICES. BY ACCEPTING THIS LICENSE AGREEMENT, YOU ARE ACKNOWLEDGING AND AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF USE CONTAINED HEREIN.
1.1. This Nonexclusive End User License Agreement – General Terms and Conditions (“Agreement”) governs your access to and use of the “Navien” app (“Software”) provided by Navien, Inc. (“we” or “Navien”), consisting generally of your download and use of the Software, which may be utilized for the remote access, management, control, and warranty service management of your Navien tankless water heater (collectively, “Services”).
1.2. The Software is a mobile application for use on mobile devices, including, without limitation, mobile phones and tablets. The intellectual property utilized in the Software shall remain the sole property of Navien, and its use shall be subject to all of the terms and conditions set forth in this Agreement.
2. ACCEPTANCE OF AGREEMENT
2.1. Your use of and access to the Software and the Services are conditioned upon your acceptance of the terms and conditions of this Agreement, which shall be incorporated into this Agreement by reference, your log-in on our website, and compliance with all applicable laws, rules, and regulations. By accepting this Agreement, you acknowledge and agree to be legally bound by the terms and conditions of use contained herein. If you do not accept the terms of this Agreement and do not desire to be legally bound thereby, you will not be granted any license to use the Software, you may not use the Software, and you must uninstall all existing copies of the Software without retaining any copies thereof. BY SELECTING “ACCEPT” BELOW AND/OR ACCESSING THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
2.2. The technology, nature and functionality of the Software are constantly changing and developing. As such, Navien reserves the right to change the terms in this Agreement at any time. Navien will give notice of any such changes by publishing the updated terms and conditions on its website at https://www.navieninc.com/mobile-app-eula. If you do not agree with any modifications to this Agreement, you must cease using the Software . Your continued access or use of the Software and/or Services after notice indicates your acceptance of the modified terms. Changes shall take effect immediately upon publication. Navien reserves the right to change the look and feel of the Software, as well as the way any data is displayed.
3. EFFECTIVE DATE OF THE AGREEMENT
This Agreement commences as of the date on which you have selected “Accept” at the end of this Agreement, first accessed the Software or first began using the Services, whichever occurred first (“Effective Date”).
4. LICENSE, RESTRICTIONS ON USE, REPRESENTATION
4.1. From the Effective Date, Navien grants to you a limited, revocable, non-exclusive, non-transferable license to use the Software for the duration of this Agreement, subject to the terms and conditions as set forth herein (“License”). The License does not grant you the right to use the Software or Services in any manner not expressly permitted by this Agreement, and all rights not expressly granted to you in this Agreement are retained by Navien. The License shall automatically terminate upon termination of this Agreement or as otherwise set forth in this Agreement. You agree not to access (or attempt to access) any of the Services by any means other than through the interfaces that are provided by Navien. You agree that you will not engage in activity that interferes with or disrupts the Services or the functionality of the Software. You agree that you will use the Software and the Services as they are intended to be used and as described herein.
4.2. You understand and agree that the Software is being provided to you for your personal use only and is intended to be used only with the registered Navien tankless water heater that you own, possess or control (“Unit”). You understand that the Software is in no way intended to be used in emergency situations, for the prevention of crime or for any other use not expressly stated herein or in subsequent amendments to this Agreement.
4.3. You acknowledge and agree that you, and any authorized users of your Unit shall use the Software and Services for lawful purposes, and in a manner that complies with all applicable federal, state, and local laws, regulations and ordinances (collectively, “Laws”), and this Agreement. In the event you have authorized any other person to use your Unit (“Authorized User”), you acknowledge and understand that neither you nor any Authorized User shall use the Software or Services in any manner which may adversely affect your or any Authorizer User’s ability to comply with all Laws and this Agreement. In the event any Authorized User causes any loss or damage due to his or her acts or omissions while using the Software or Services, or while operating the Unit, you agree that you, not Navien, will be solely responsible for any such loss or damage caused thereby.
4.4. You acknowledge and agree that you and any Authorized Users shall not commit any of the following acts in connection with the Software or Services: (i) access or log in to, or attempt to access or log in to, any account or data that is not associated with your Unit or use of the Services; (ii) use any data obtained through your use of the Software or Services for any unlawful purpose or in violation of any Laws or term or condition of this Agreement; (iii) track or monitor any individual without said individual’s prior express consent; (iv) willfully tamper or interfere with, or breach or attempt to breach, any of Navien’s security or authentication measures; (v) willfully tamper or interfere with the Software or any of the Services; (vi) copy, rent, lease, sell, reproduce, assign, license, or sublicense Software, License or any of the Services in whole or in part, or attempt to copy, rent, lease, sell, reproduce, assign, license, or sublicense the Software, License or any of the Services in whole or in part; (vii) remove, alter, conceal, or tamper with any copyright, trademark, or other form of intellectual property belonging to Navien, its parent, subsidiaries or affiliates (collectively, the “Navien Companies”); (viii) use, reproduce, republish, transmit, or distribute the name of Navien or any of its proprietary rights without obtaining Navien’s express prior written consent; (ix) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Services; (x) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Software; (xi) reverse engineer, disassemble, decompile, decode or adapt the Services, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (xii) reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (xiii) bypass or breach any security device, system or protection used for or contained in the Software or documentation; (xiv) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Software or documentation; (xv) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Law; (xvi) use the Services for purposes of: (a) benchmarking or competitive analysis of the Software; (b) developing, using or providing a competing software product or service; or (c) any other purpose that is to Navien’s detriment or commercial disadvantage; (xvii) use the Services in connection with the design, construction, maintenance, operation or use of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software or Services could lead to personal injury or severe physical or property damage; (xviii) use the Software other than for the permitted use or in any manner or for any purpose or application not expressly permitted by this Agreement; or (xix) assign, sell, lease, license, transfer, encumber or pledge as security, permit liens against or otherwise convey any rights therein.
4.5. You are responsible for the use of the Software. You agree to comply with all applicable Laws of each applicable federal, state, local or foreign government and any agency or public authority thereof, and to indemnify and hold Navien harmless from liability or loss by reason of any asserted or established violation of said laws, ordinances, rules, or regulations by you or any of your Authorized Users.
4.6. Improper installation of the Unit or Software may result in complete or partial loss of functionality of the Unit and the inability to utilize the Software or Services under this Agreement. It is solely your responsibility to ensure that the Unit and Software were and are properly installed at all times. Navien will not be liable to you or to any person for any loss or damage caused by improper installation of the Unit or Software or use of the Software or Services. You agree to indemnify and hold Navien harmless from any and all claims or damages you or any person may have for any loss or damage caused by said improper installation or use.
4.7. The Software may be subject to updates from time to time, which you hereby agree to accept with or without notice. Such updates may either be automatically downloaded and installed on your devices or you may be provided with instructions to complete such updates whereupon you will promptly comply with such instructions. These updates are designed to improve, enhance and further develop the Software and Services and may, without limitation, take the form of bug fixes, enhanced functionality, new software, and completely new versions. You agree to receive such updates, and authorize Navien to provide you with any updates, as part of your use of the Software and Services.
5.1. This Agreement commences as of the Effective Date and will continue until terminated under the terms herein
5.2. Navien may, with or without notice to you, terminate this Agreement immediately in the event you, or your Authorized Users, breach or violate any of the terms set forth in this Agreement, including but not limited to the use restrictions set forth herein, at which time you and your Authorized Users shall forfeit your rights to the use of the Software and Services.
5.3. This Agreement may be terminated by Navien upon any material breach of this Agreement by you or any Authorized User; the occurrence to you of any act, determination, filing, judgment, declaration, notice, appointment of receiver, liquidator, examiner or trustee; failure to pay debts or other events under any applicable laws of the jurisdiction indicating your insolvency or bankruptcy; or Navien receiving the notice of the same from you, your representative or any third parties. Termination under this subsection shall be effective without notice.
5.4. Notwithstanding the foregoing and controlling over all inconsistent or contrary provisions which may appear in this Agreement, Navien shall have the right to terminate this Agreement, the Services or the operation of the Software at any time with or without cause by giving you written notice of such termination, to be effective upon Navien sending of such notice to your email address on Navien’s record and/or used in association with the Software.
5.5. Upon termination, your customer account will be deleted and any rights granted to you under this Agreement will be immediately revoked, including, but not limited to, your right to access any data produced in connection with your use of the Software or Services in any manner. You agree to promptly and permanently delete any and all copies of the Software that are in your possession or control, unless provided otherwise in writing by Navien.
5.6. If you wish to terminate this Agreement, you must submit your written request using the online form located at https://www.navieninc.com/contact.
6.1. During your use of the Software, Navien may collect, use, process, and store certain personal, diagnostic, usage, and other related content or data from the devices which you use to access the Software. Navien respects your privacy, and any such information shall be subject to our Privacy Policies, which can be viewed at https://www.navieninc.com/privacy and, additionally for California residents, https://www.navieninc.com/ccpa-privacy-policy, and are hereby incorporated by reference.
6.2. You agree to provide any and all required disclosures to any Authorized User and to take any and all such other actions as may be required by applicable Laws in compliance with any applicable notification and disclosure requirements.
6.3. You understand that Navien cannot guaranty the security of data transmissions, and will not be liable for any lack of security relating to the use of the Software, the Services or the transmission of data associated with the use of the Software or Services.
6.4. The Software and Services have many complex elements and are not guaranteed against eavesdroppers, hackers, denial of service attacks, viruses, or interceptors. You acknowledge, agree and consent, and undertake to inform, and obtain consent from your Authorized Users of the Software and Services, that neither the Navien Companies nor any of their service providers or licensors, will be liable for any lack of privacy or security resulting from the use of the Services provided that Navien did not cause or substantially contribute to the privacy or security breach. In addition, to the extent you or your Authorized Users have a privacy right in the location, characteristics, performance or operation of the Unit, you or your Authorized Users voluntarily consent to the use by Navien of such data subject to the Confidentiality provision set forth in this Agreement.
6.5. Navien may collect the following types of data through the use of the Services by you and/or your Authorized Users: (i) information about your accounts with the Navien Companies, whether existing presently or in the future; (ii) images of your Unit and its immediately surrounding vicinity; and (iii) information about your Unit.
6.6. The Navien Companies may use such data for the sole purposes of: (i) providing the Navien Companies' products and services; (ii) improving the quality, safety, and security of Navien Companies' products and services; (iii) developing new products and services; (iv) maintaining customer relationships and communications; (v) operating the Navien Companies' websites and applications, including online registration processes; (vi) providing product and service updates; (vii) evaluating the quality, safety, and security of the Navien Companies' services; (viii) for research, evaluation of use, and troubleshooting purposes; (ix) complying with legal, regulatory or contractual requirements; (x) sharing with third parties for any legitimate business purpose (provided that where required, the Navien Companies will anonymize, de-identify, or aggregate such information in a way that cannot reasonably be associated with you).
6.7. The Navien Companies may share such data with or for the following uses (and where required, the Navien Companies will obtain additional consent or anonymize or aggregate the data): (i) with emergency service providers, such as law enforcement, roadside assistance providers, and ambulance providers, in order to deliver related services (for example, stolen vehicle assistance services); (ii) for research and development purposes; (iv) with its service providers, such as repair technicians, for the purpose of providing the Services; (v) as required or permitted by Law, such as in conjunction with a subpoena, government inquiry, litigation, dispute resolution, or similar legal process, when the Navien Companies reasonably believe that disclosure is necessary for the Licensee’s or End Users’ rights, safety, or the safety of others and to detect, investigate and prevent fraud.
7.1. With respect to the Software, all rights, interest and title of ownership shall at all times remain the property of Navien. You acknowledge and agree that this Agreement does not grant you any right to copy, transfer, disclose, or own any or all portion of the Software. Navien reserves sole and exclusive ownership of the Software and all proprietary rights therein, including all copyrights, patents, trademarks, and other intellectual property rights.
7.2. With respect to any personal information produced during your use of the Software or the Services, all such data shall belong to you and shall constitute your property. You agree that Navien may use and disclose such data, whether in aggregated and anonymized form or otherwise, for purposes of performing its obligations under this Agreement and as otherwise required in connection with the operation, support, maintenance, improvement, or other use of the Software or Services and any information, content, materials, applications, products or services made available on, through or in connection therewith. You understand that your customer account will be deleted upon termination of this Agreement, and that your right to access any data produced in connection with your use of the Services shall be immediately revoked upon termination, except as required by law. You acknowledge and agree that, except as required by law, Navien is not responsible for maintaining your data after termination of this Agreement, and that Navien shall not be liable for any loss of data after termination.
7.3. At Navien’s request, you may be asked to provide a review or evaluation of the Unit, Software and/or Services, for Navien’s internal use. You hereby acknowledge and agree that any comments or feedback relating to the Services will become the property of Navien upon receipt and may be used by Navien for business and/or internal purposes.
8.1. The Software and Services are provided to you on an "AS IS" and "AS AVAILABLE" basis. You acknowledge that Navien has no obligation whatsoever to provide any maintenance or support relating to the Software or Services during the term of your use of the Software or the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NAVIEN DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
8.2. IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, NAVIEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATING TO: (1) THE ACCURACY, ADEQUACY, CORRECTNESS, OR COMPLETENESS OF THE INFORMATION WITHIN THE SOFTWARE; OR (2) THE SECURITY, INTERRUPTION, AVAILABILITY, OR ERROR-FREE BASIS OF THE SOFTWARE, OR ABILITY TO MEET YOUR REQUIREMENTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
9. PROPRIETARY RIGHTS
9.1. All copyrights, patents, trademarks, or other proprietary rights provided by Navien or its affiliates in connection with the Software and Services belong to Navien or the Navien Companies, and such proprietary rights are protected from unauthorized copying or dissemination by applicable copyright and trademark laws, international conventions, and other intellectual property laws. You understand that you may not use, reproduce, republish, transmit, or distribute the Software, the name of Navien or any of its proprietary rights without obtaining Navien's express prior written consent, and that you may not attempt to modify, translate, reverse engineer, disassemble, decompile, or otherwise try to discover any of the underlying ideas of any portion of the Software. Navien reserves all other rights in the Software or Services not expressly granted herein.
9.2. Controlling over any contrary provisions herein, you acknowledge that any breach of any provision of this Section will cause immediate and irreparable injury to Navien and/or the Navien Companies, and in the event of such breach, Navien and/or the Navien Companies shall be entitled to seek injunctive relief in a court of law in addition to any and all other remedies available at law or in equity.
10. DISCLAIMERS AND LIMITATIONS OF LIABILITY
10.1. You understand that access to your account and data is protected by a user name and password, which are chosen and can be changed by you. You understand and agree that you are entirely responsible for the recordation and control of your user name and password and that you will be solely responsible for any use thereof. You agree that Navien shall not be liable or responsible for the use or misuse of any user name or password, and that you are entirely responsible for maintaining the confidentiality of your user name, password and account information, as well as any and all activities that occur within your account. If you suspect there has been a security breach or unauthorized use of your account, you agree that you will immediately notify Navien by calling 800-519-8794 or by completing the online form located at https://www.navieninc.com/contact. Navien shall not be liable for any unauthorized access to your account or for any claims or actions associated therewith.
10.2. You acknowledge and understand that access to and proper functioning of the Software and Services depend on a number of factors beyond Navien’s control, including the nature of your mobile device and the strength, availability and stability of your internet connection. You understand that the Services may be temporarily interrupted, or otherwise become inaccessible, inoperable, or delayed due to reasons beyond Navien’s control, including, but not limited to, the following: (i) lack of wireless network coverage in a geographic area or restrictions on wireless coverage; (ii) geographic, atmospheric, or terrain conditions, or other natural or artificial environmental conditions beyond Navien’s control, including, but not limited to, electrical storms, floods, fires, or power failures; (iii) equipment malfunctions or damage; (iv) network traffic or congestion; (v) interruptions in or unavailability of internet connection; (vi) modifications, upgrades, repairs, or other interference with or to the network transmissions or services; (vii) obstruction of satellite signal transmissions caused by buildings, overpasses, parking garages, underground tunnels or structures, or other large objects; (viii) lack of sufficient power or operating capability of your mobile device; (ix) government regulations or any changes in rules, regulations, or policies made by the Federal Communications Commission (“FCC”) or other authorized or regulating governmental authorities; (x) any third-party communication provider’s unilateral decision to discontinue, suspend, or terminate its provision of communication services; or (xi) any other reason beyond Navien’s control. You understand that the Services are limited to usage within the United States, and may be further limited if outside the network coverage area provided by the wireless carriers. You agree that Navien shall not have any responsibility with respect to third-party communication providers, GPS or similar technology, cellular telephone networks or wireless carriers, or any data transmitted thereby or therein. In addition, you acknowledge and agree that Navien shall not, in any manner, be liable or responsible for any interruptions, disruptions, or delays in the Software or Services for any reason whatsoever, or for any costs, losses, or damages, including indirect, consequential, punitive, special, or incidental or other damages, that may result for any such interruptions, disruptions, or delays in the Services. You further agree that you will not be entitled to any discounts or refunds as a result of any such interruptions in the Services or functionality of the Software.
10.3. You acknowledge and agree that Navien cannot warrant or guarantee the security of the wireless signal transmissions that are made to or from third-party communications providers or the information transmitted therein, and that Navien shall not be liable or responsible for any lack of security relating to your use of the Software or Services.
10.4. You acknowledge and agree that you are solely responsible for any risk that you take in using the Software and Services. IN NO EVENT SHALL NAVIEN, ITS AFFILIATES, SUBSIDIARIES, PARTNERS, LICENSORS, BRAND LICENSEES OR SUPPLIERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, LEGAL REPRESENTATIVES, AGENTS, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, “NAVIEN PARTIES”), BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL OR OTHER DAMAGES, COSTS OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF PROFITS, DATA, GOODWILL, OR OTHER TANGIBLE LOSSES RESULTING FROM, ARISING OUT OF, OR IN CONNECTION WITH THE ACCESS, USE OF, OR INABILITY TO ACCESS OR USE THE DEVICE OR SOFTWARE OR THE CONTENT THEREIN, INCLUDING, BUT NOT LIMITED TO, THE INABILITY TO ACCESS OR USE THE SERVICES CAUSED BY INTERFERENCE, OBSTRUCTION, OR INTERRUPTION IN SERVICES, EVEN IF THE NAVIEN PARTIES, OR ANY OF THEM, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS, OR LOSSES, OR ANY USER CONTENT, AS DEFINED HEREIN, THAT YOU, ANY AUTHORIZED USER, ANY SERVICE PROVIDER OR ANY OTHER PERSON MAY CREATE, CAPTURE UPLOAD
10.5. NOTWITHSTANDING THE ABOVE, UNDER NO CIRCUMSTANCES WILL THE MAXIMUM AGGREGATE LIABILITY OF THE NAVIEN PARTIES, EITHER INDIVIDUALLY OR COLLECTIVELY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES, EXCEED THE TOTAL PRICE PAID BY YOU FOR YOUR USE OF THE SOFTWARE, NOR SHALL ANY ACTION BE BROUGHT AGAINST THE NAVIEN PARTIES FOR ANY BREACH HEREOF MORE THAN TWELVE (12) MONTHS FOLLOWING THE ACCRUAL OF SUCH CAUSE OF ACTION.
10.6. Navien will have no liability for a failure to provide, or for delay in providing the Services due directly or indirectly to certain technological and other limitations as described herein or as may otherwise occur. If Navien is unable to wholly or partially perform the Services because of any cause beyond its control, Navien may terminate this Agreement without any liability to you, other than the refund of any amounts paid, if any, for unused Services. Technological limitations may include but are not limited to the following: (a) Complete wireless coverage of the service area at all times is improbable. The existence of adverse conditions, such as short-term unpredictable meteorological effects and sky wave interference from distant stations, can interrupt the Services at times. Certain circumstances such as weather, tunnels, underground structures, terrain, high-rise buildings, enclosed or underground parking or driving areas, faulty installation, motor ignition and other electrical noises and radio signals from external sources may interfere with the Services. Service interruptions may also be caused by network congestion, roaming and similar access issues. (b) If the Unit is altered, damaged, not properly installed or disconnected, the functionality of the Services may be jeopardized. (c) The Services have many complex elements and are not guaranteed against eavesdroppers, hackers, denial of service attacks, viruses or interceptors. You acknowledge and agree, and undertake to inform any Authorized Users of the Services that Navien will not be liable for any lack of privacy or security resulting from use of the Services. In addition, to the extent you have a privacy right in the location, characteristics, performance or operation of your Unit, you agree to voluntarily waive such right. (d) Navien will incur no liability for its inability to provide adequate Services hereunder arising from or related to a lack of network capacity, which may result in your inability to access the Software or Services, and nothing herein will require Navien to expend any capital to insure capacity for your use of the Services or the Software; (e) Navien assumes no responsibility for Service features that are unavailable for a particular Unit or due to limitations introduced by improper installation of your Unit.
10.7. Except as otherwise provided herein, Navien does not own, control or actively monitor any content, including, without limitation, any photographs or other visual media, audio or visual recording, or any other media or recording in any form or medium, including letters, words, images, sounds, symbols or works of art (collectively, the “User Content”), that you, any Authorized User, any service provider or any other person who is not a Navien Party may provide, create, share, disclose, originate, modify or upload to the Software or in relation to, as a result of or in furtherance of the Services. Navien makes no guarantee, warranty or representation about the User Content, including, without limitation, as to whether the User Content violates or infringes on any intellectual property, privacy, decency or any other rights, laws, rules, agreements, ordinances or regulations or whether the User Content may alter, injure or adversely affect any person or property, the Software or the Services. Accordingly, YOU AGREE TO PROVIDE, CREATE, ACCESS, SHARE, DISCLOSE, ORIGINATE, MODIFY, UPLOAD OR OTHERWISE USE THE USER CONTENT, IN RELATION TO THE SOFTWARE AND/OR SERVICES, AT YOUR OWN RISK. YOU AGREE TO PROTECT, DEFEND, INDEMNIFY AND HOLD NAVIEN AND THE NAVIEN PARTIES HARMLESS FROM AND AGAINST ALL LOSSES, COSTS, LIABILITIES, CLAIMS, DAMAGES AND EXPENSES OF EVERY KIND AND CHARACTER, AS INCURRED FROM, RESULTING FROM, RELATING TO OR ARISING OUT OF THE USER CONTENT.
You agree to defend, indemnify and hold harmless Navien, the Navien Companies and the Navien Parties from and against any demands, claims, damages, liabilities, costs, expenses (including reasonable attorneys' fees, expert fees, and litigation costs), or causes of action of any kind or character that arise out of, result from, or are otherwise connected with you, your officers, directors, employees, agents, assigns, invitees, or other users of the Software or Services, or any breach or violation of the terms of this Agreement. This provision and the obligations contained herein shall survive the termination of this Agreement.
12.1. You acknowledge that the Software contains proprietary and confidential information of Navien, which Navien considers to constitute valuable trade secrets. “Confidential Information” shall include any data, features, results, graphs, systems, designs, or output produced by, or other information relating to, the Software, any business or technical information of Navien, and any trade secret or proprietary information concerning Navien. To the extent you have access or are exposed to the Confidential Information, you agree that you will keep and maintain all Confidential Information of Navien in strict confidence, using such degree of care as you would use to protect your own confidential information, that you will not use any such Confidential Information for your own purposes, and that you will not use or disclose any Confidential Information of Navien to any third party unless you obtain Navien’s prior written consent.
12.2. “Confidential Information” shall not include any information that is lawfully in your possession at the time of disclosure, is or later becomes generally known to the public through no fault of your own or breach of this Agreement, is independently developed by you without reference to any Confidential Information provided by Navien, or is lawfully obtained from a third party who is not in breach of any confidentiality obligations owed to Navien. If you are required to disclose Confidential Information pursuant to law or legal order, you agree to promptly provide Navien with written notification of such requirement, and cooperate with Navien such that it will be able to take appropriate action to protect its Confidential Information.
13. DISPUTE RESOLUTION
13.1. The parties agree that any and all disputes, disagreements, controversies, claims, or other causes of action which may arise between the parties in relation to or in connection with this Agreement shall be submitted to arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”) in Orange County, California, before a single arbitrator. AAA shall provide the parties with a list of at least three (3) neutral arbitrators from which the parties shall mutually select the arbitrator. Should the parties fail to agree upon an arbitrator, AAA shall make the selection for them. Arbitration shall be held and conducted before the selected arbitrator, whose decision shall be final and binding upon both parties. The costs and fees of the arbitrator shall be borne equally between the parties, and the parties agree that the prevailing party in the arbitration may collect all or a portion of its reasonable attorneys’ fees at the discretion of the arbitrator. Any arbitration proceeding shall be completed expeditiously and without undue delay or expense. In no event shall the demand for arbitration be made after the date upon which the institution of legal or equitable proceedings based upon the dispute, disagreement, controversy, claim, or other cause of action giving rise to the arbitration proceeding would be barred by the applicable statute of limitations. In the event either party commences litigation regarding any matter arising out of or in connection with this Agreement, the other party shall have the absolute right to have such litigation dismissed, and shall have the right to either request that the court refer the matter to arbitration or institute an arbitration proceeding which shall supersede and take precedence over any court proceedings. All attorneys’ fees and costs incurred by either party in opposing and/or obtaining a dismissal of such non-arbitration proceedings shall be recoverable against the party initiating such proceedings.
13.2. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF A CLASS IN A CLASS ACTION.
13.3. YOU HEREBY AGREE THAT ANY CLAIM OR DISPUTE WILL BE DECIDED BY ARBITRATION AND NOT IN COURT OR BY A JURY TRIAL. YOU HEREBY KNOWINGLY AND VOLUNTARILY WAIVE YOUR RIGHT TO HAVE ANY CLAIM OR DISPUTE RESOLVED BY A JURY.
14. CCPA/CPRA – FOR CALIFORNIA RESIDENTS ONLY
14.1. Personal Information Collected. Through the Software, Navien may collect and/or share the following personal information (“Personal Information”) from you and/or your Authorized Users, all for the purposes set forth above:
- Postal address where the Unit is located
- Geolocation data
- Visual information (e.g., images and other media of your Unit)
14.2. Sensitive Personal Information Collected. Navien does not collect any Sensitive Personal Information.
14.3. Collection Purpose. Navien collects the above personal information and shares it with technicians and contractors in order to contact and inform contractors who may provide the Services for your Unit and for other purposes set forth at https://www.navieninc.com/ccpa-privacy-policy (the “CCPA Website”), which Navien incorporates herein by reference. Navien does not sell your information.
14.4. Duration. Navien intends to retain the Personal Information for as long as you own or possess your Unit.
14.5. Opt-Out Option. As a California resident, you have the right to opt out of your information being shared if you so choose. You may opt out by the means provided in the CCPA Website. Please note, however, that by doing so, you agree to uninstall and stop using the Software, as not allowing Navien to share the Personal Information with contractors may adversely affect the functionality of the Software and/or prevent Navien and its contractors from providing you with the Services.
14.6. Permissible Consumer Requests. Upon your request, Navien may be required to do the following: (1) Disclose the categories, purposes and specific pieces of personal information collected; (2) deliver your collected personal information to you; (3) delete your personal information; (4) correct inaccurate personal information. Additional information regarding these requests, including the procedure for making such requests, can be found on the CCPA Website.
14.7. Age Restriction. California law prohibits businesses from sharing the personal information of persons 16 years old or younger without affirmative consent. Accordingly, if you are not over the age of 16 and/or have not given your affirmative authorization to share your personal information, you are prohibited from using the Software, you agree to uninstall the Software from all of your devices, and you agree not to access or use the Software by any means.
15. GENERAL TERMS
15.1. Waiver. No failure on the part of Navien to enforce any part of this Agreement shall constitute a waiver of any of Navien’s rights herein, whether for past or future actions on the part of any person. Neither the receipt of any funds by Navien nor the reliance of any person on Navien’s actions shall be deemed to constitute a waiver of any part of this Agreement. No waiver of this Agreement will be deemed effective or enforceable unless in a writing signed by the party to be bound by the waiver.
15.2. Assignment. You may not assign this Agreement, in whole or in part, without Navien's prior written consent which consent may be withheld by Navien in its sole and absolute discretion. Any attempt to assign or delegate any rights, duties or obligations arising under this Agreement in contravention of the above shall be deemed null and void. Notwithstanding the foregoing, this Agreement, or any portion thereof, is fully assignable or transferable by Navien to any person or entity and shall inure to the benefit of such assignee or successor.
15.3. Severability. In the event that any provision in this Agreement is held to be invalid or unenforceable, the invalid or unenforceable provision will be replaced by a valid, enforceable provision that most closely matches the intent of the original provision, and the remaining provisions shall remain in full force and effect.
15.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of laws principles.
15.5. Headings. The headings of the sections contained herein are inserted for convenience only, and shall not constitute a part hereof or affect in any way the meaning or interpretation of the terms of this Agreement.
15.8. Force Majeure. Without limiting the limitation of liabilities set forth in this Agreement, in no event shall Navien be responsible for any damage, loss, injury or harm resulting from matters beyond Navien's reasonable control including but not limited to strike, lockout or labor dispute, lack or failure of customary sources of supply of fuel, labor and materials, national emergency, any law or governmental rule, order or regulation, war, civil commotion, riot, interference by civil or military authorities, fire, weather conditions, utility interruptions, other casualty or act of God.
15.9. Attorneys’ Fees. If any legal action is necessary in order to enforce any of the terms or conditions of this Agreement or otherwise results from the relationship between you and Navien, the prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing party.
BY ACCEPTING THIS AGREEMENT OR BY CONTINUING TO USE THE SOFTWARE, YOU ARE REPRESENTING TO NAVIEN THAT YOU HAVE FULLY READ AND UNDERSTOOD ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOU ACKNOWLEDGE AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT AND ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN.