General Terms and Conditions

TERMS OF SERVICE

PhotonFi Inc. and its subsidiaries and affiliates (collectively, “PhotonFi”) provides: (1) websites located at www.photonfi.net and related sub-domains and any other websites hosted by PhotonFi or its affiliates (collectively the “Sites”), (2) software and services accessible or downloadable through the Sites (“Web Apps”), (3) software and services accessible or downloadable through Your smartphone or tablet (“Mobile Apps”) and (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”), all for use in conjunction with PhotonFi hardware products (“Products”) and for other software and services that PhotonFi provides. The term “Services” means the Sites, Web Apps, Mobile Apps and Subscription Services.

These Terms of Service (these “Terms”) govern Your access to and use of the Services. The term “You,” “Your,” “you” or “your” as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account (as defined in Section IV(a)) and accepts these Terms, including any individuals that You authorize to access or use the Services, including Your independent contractors or employees (“Authorized Users”). For the avoidance of doubt, where the term “You,” “Your,” “you” or “your” is used in these Terms, it shall include any Authorized User, regardless of whether “Authorized User” is specifically stated. For Services that You receive from a third party distributor or reseller, these Terms govern any rights and obligations between You and PhotonFi, and govern Your use of such Services.

You must read and agree to be bound by these Terms before downloading, installing, accessing or using the Services, effective as of the date of such download, installation, access or use. BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT OTHERWISE DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICES.

THE SERVICES MAY BE SUBJECT TO AUTOMATIC SOFTWARE UPDATES, AS DESCRIBED FURTHER IN SECTION IV(C), AND YOU ALSO HEREBY CONSENT TO SUCH UPDATES. If You do not agree to such updates, You are not permitted to, and You must not, download, install, access or use the Services.

PhotonFi may, in its sole and absolute discretion, change these Terms from time to time, as indicated by the date at the end of these Terms. If You object to any such change, Your sole recourse will be to cease using the Services. Continued use of the Services following any such change will indicate Your acknowledgement of such change and agreement to be bound by the new terms and conditions.

I. Overview, Eligibility

​a. These Terms are a binding agreement between You and PhotonFi.

​b. These Terms govern Your use of the Services. The software embedded in Your Product (and any updates thereto) is licensed and governed by the End User License Agreement. All additional guidelines, terms, or rules on the Sites, the Web Apps and the Mobile Apps, including the Privacy Policy , are incorporated by reference into these Terms and You are agreeing to accept and abide by them by using the Services.

​c. Subject to Section (I)(d), You may access and use the Services only if You can form a binding contract with PhotonFi and only if You are in compliance with the Terms and all applicable laws and regulations. If You are accepting these Terms on behalf of an entity or individual, You represent and warrant that You have full legal authority to bind such entity or individual to these Terms.

​d. If You are an Authorized User, You represent and warrant that You are over the age of 13 (or equivalent minimum age in the jurisdiction where You reside or access or use the Services), and in the event You are between the age of 13 (or equivalent minimum age in the jurisdiction where you reside or access or use the Services) and the age of majority in the jurisdiction where You reside or access or use the Services, that You will only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Services by individuals under the age of 13 (or equivalent minimum age in the jurisdiction where you reside or access or use the Services) is strictly prohibited and a violation of these Terms.

II. License

​a. License Grant. Subject to Your compliance at all times with these Terms, PhotonFi grants, under all of its rights in and to the Services, a worldwide, non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use the Services solely for Your personal use, to use, manage and monitor Your Products and collect and receive data from Your Products. For the avoidance of doubt, the license grant in this Section II(a) does not grant any right or license to Third Party Software (as defined in Section II(c)) or Third Party Products and Services (as defined in Section VI(g)).

​b. Limitations on Use.

​ ​i. The Services and its contents, features and functionality (including, without limitation, all information, software, text, graphics, images, controller and audio, and the design, selection and arrangement thereof) (collectively, the “Content”) are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

​ ​ii. You shall not directly or indirectly do any of the following:

​ ​ ​1. sell, offer for sale, lease, license, sublicense or distribute the Services or any Content;

​ ​ ​2. copy, reproduce, broadcast, transmit, republish, distribute, modify, prepare derivative works of, perform, publicly perform or display any Content in any way without the prior written permission of Ubiquiti and its applicable licensors;

​ ​ ​3. remove or alter any copyright, trademark or other proprietary rights notices from the Content, or use the Content in contravention of any such applicable notices;

​ ​ ​4. copy, modify or create derivative works of, or reverse engineer, decompile, translate, disassemble or otherwise attempt to extract the source code of, any software included in the Services.

​ ​ ​5. violate any third party rights or any local, state, national or international law or regulation;

​ ​ ​6. transmit or create any materials that are abusive, harassing, tortious, defamatory, libelous, harmful, fraudulent, deceptive, threatening, vulgar, obscene, invasive of another’s privacy or otherwise objectionable;

​ ​ ​7. transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

​ ​ ​8. impersonate any person or entity, or otherwise misrepresent Your affiliation with a person or entity;

​ ​ ​9. engage in any High Risk Activities (as defined in Section VI(c)(ii));

​ ​ ​10. jeopardize the security of Your account or anyone else’s account, or attempt, in any manner, to obtain the password, account, or other security information from any other user;

​ ​ ​11. interfere with, disrupt or attempt to gain unauthorized access to the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;

​ ​ ​12. remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Services

​ ​ ​13. create a substantially similar product or service thereto, or to any component thereof; or

​ ​ ​14. violate any applicable law or regulation or accompanying user or technical manuals, training materials, specifications or other documentation pertaining to any Services, whether in digital or printed format.

​ ​iii. You are responsible for obtaining and maintaining all equipment and services needed for access to and use of the Services and for paying all charges related thereto.

​c. Third Party Software.

​ ​i. Certain software included in, distributed with or downloaded in connection with the Services may comprise third party proprietary software products that are subject to separate license terms (“Third Party Software”). In addition, some Products are enabled to operate with Third Party Software rather than PhotonFi software. All such Third Party Software may include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software or under similar licensing or distribution models (“Open Source Software,” together with Third Party Software, “External Software”).

​ ​ii. Your use of External Software is subject in all cases to the applicable licenses from the External Software provider, which shall take precedence over the rights and restrictions granted in these Terms solely with respect to such External Software. You shall comply with the terms of all applicable Third Party Software and Open Source Software licenses, if any. Copyrights to Open Source Software are held by their respective copyright holders indicated in the copyright notices in the corresponding source files. The Services may include software developed by the OpenSSL Project for use in the OpenSSL Toolkit (http://www.openssl.org/).

​ ​iii. FOR THE AVOIDANCE OF DOUBT, PHOTONFI PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH EXTERNAL SOFTWARE, INCLUDING WITH RESPECT TO FUNCTIONALITY OF SUCH EXTERNAL SOFTWARE WITH ANY PRODUCT OR SERVICE. PhotonFi does not provide any warranty, maintenance, technical or other support for any External Software or its use on any Product or Service. Accordingly, PhotonFi is not responsible for Your use of any External Software or any personal injury, death, property damage (including, without limitation, to Your home), or other harm or losses arising from or relating to Your use of any External Software.

​d. Intellectual Property Ownership. All copyrights, trade secrets, patents, trademarks and other intellectual property and proprietary rights in any jurisdiction worldwide (collectively, “Intellectual Property Rights”) in and to the Services and the Content are the sole property of PhotonFi or its licensors. You do not have or receive any right, title or interest in or to the Services or the Content through Your use of the Services or otherwise. Except for the limited license in Section II(a) of these Terms, PhotonFi does not grant any express or implied right to You under any of its Intellectual Property Rights.

​e. Trademarks. All trademarks, service marks, trade names and logos and the goodwill associated therewith (“Marks”) included or displayed in the Services or Content are the exclusive property of PhotonFi or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Ubiquiti or such respective holders.

​f. User Submissions.

​ ​i. PhotonFi does not claim ownership of any information, data, text, images or other materials You or Your devices submit for display, processing, temporary storage or distribution through the Services (collectively, “User Submissions”). As between PhotonFi and You, You own all rights to Your User Submissions. PhotonFi does not pre-screen User Submissions and You agree that You are solely responsible for all of Your User Submissions. PhotonFi is not required to host, store, process, display, return or distribute any User Submissions, and may remove Your User Submissions at any time. PhotonFi is not responsible for any loss, theft or damage of any kind to any User Submissions. You represent and warrant that Your User Submissions, and PhotonFi’s use thereof, do not and will not infringe the rights of any third party (including, without limitation, Intellectual Property Rights, rights of privacy or publicity, or any other legal or moral rights).

​ ​ii. In addition, You hereby grant to PhotonFi, without obligation, compensation, or restriction of any kind or nature, the worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up right: (i) to copy, reproduce, broadcast, transmit, republish, distribute, modify, prepare derivative works of, perform, publicly perform and display any User Submissions and any copies thereof, in any format or medium now known or later developed, and including as embodied in any Product; (ii) to make, have made, use, license, rent, lease, sell, offer for sale and import the User Submissions and any copies thereof. PhotonFi reserves the right to display advertisements in connection with User Submissions and to use User Submissions for advertising and promotional purposes.

​g. Feedback.

​ ​i. If You provide technical, business or other feedback, suggestions or comments to PhotonFi concerning the Services or any other Product (collectively, “Feedback”), You assign to PhotonFi all right, title and interest in and to any Feedback and all proprietary rights therein, including, without limitation, Intellectual Property Rights. You represent and warrant that the Feedback is not subject to any license terms that would purport to require PhotonFi to comply with any additional obligations with respect to any Services or Products that incorporate any Feedback.

​ ​ii. To the extent the foregoing present assignment is ineffective for any reason, You hereby grant to PhotonFi, without obligation, compensation, or restriction of any kind or nature, the worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up right: (i) to copy, reproduce, broadcast, transmit, republish, distribute, modify, prepare derivative works of, perform, publicly perform and display the Feedback and any copies thereof, in any format or medium now known or later developed, and including as embodied in any Service or Product; (ii) to make, have made, use, license, rent, lease, sell, offer for sale and import the Feedback and any copies thereof, including as embodied in any Service or Product; and (iii) to sublicense any of the foregoing rights to third parties, including the right to sublicense to further third parties, and including under Your copyrights and trade secrets and the claims of any patents owned or licensable by You that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with any Feedback or portion thereof incorporated into a Service or Product. In any case, and for the avoidance of doubt, You agree and acknowledge that the incorporation by PhotonFi of any Feedback into any Services or Products does not grant You any proprietary rights in or to any such Products.

III. Data; Confidentiality

​a. Data. You agree that PhotonFi may from time to time collect and use data in a form that could personally identify You (such as Your name, email address, mailing address or other contact information) or Your customers (collectively “Personal Data”), for any reason, including to facilitate the provision of updates to any applications or services, promote new Products and Services, authenticate Products, verify compliance with these Terms, and improve Products. Your usage and Personal Data is governed by PhotonFi’s PhotonFi Privacy Policy. Subject to Section (III)(c) or as otherwise provided in the PhotonFi Privacy Policy, PhotonFi will not share Your or Your customers’ Personal Data with third parties without Your prior consent.

​b. SECURITY. PHOTONFI CARES ABOUT THE INTEGRITY AND SECURITY OF YOUR PERSONAL DATA. HOWEVER, PHOTONFI CANNOT GUARANTEE THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR USE YOUR PERSONAL DATA FOR IMPROPER PURPOSES. YOU ACKNOWLEDGE AND AGREE THAT YOU PROVIDE YOUR PERSONAL DATA AT YOUR OWN RISK.

​c. Special Note to International Users. If You are accessing the Services from the European Union, Asia or any other region with laws or regulations governing personal data collection and disclosure that differ from United States laws, please be advised that Your continued use of the Services will be governed by United States law, our PhotonFi Privacy Policy and these Terms. Information about You that we collect or that You submit may be transferred to, processed in or held in countries other than the one in which You reside, including countries, such as the United States, which the European Union has deemed do not provide “adequate” protection for personal information. If You are located in a country outside the United States and voluntarily submit Personal Data to us, You thereby consent to the general use of such information and the transfer of such information to, and storage of that information in, the United States or other locations in which information is stored, in each case as provided in these Terms and the PhotonFi Privacy Policy.

​d. Confidentiality.

​ ​i. “Confidential Information” means the Services and any and all business or technical information of PhotonFi or a third party to whom PhotonFi has an obligation of confidentiality, whether disclosed in writing, orally, by electronic delivery, by inspection of tangible objects or otherwise. Confidential Information also includes, without limitation, these Terms and its purposes, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, data structures, scripts, applications, programming interfaces, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, customer and supplier lists, product or service designs, specifications and schematics, product or service costs, product or service prices, product or service names, financial information, employee information, marketing plans, business opportunities and research, market and development activities and results.

​ ​ii. You shall permit to use the Confidential Information only Authorized Users who have a need to know such Confidential Information, and who are informed of the confidential nature of the Confidential Information and are bound by obligations no less restrictive than those set forth herein applicable to such Confidential Information, in each case only for the purpose of exercising the license expressly granted hereunder. You agree not to otherwise transfer, copy, disclose, provide or otherwise make available Confidential Information in any form to any third party without the prior written consent of Ubiquiti. You hereby guarantee the performance of the provisions hereof by any Authorized User, or any other person or entity that may obtain Confidential Information directly or indirectly from You.

​ ​iii. You agree to implement reasonable security measures to protect Confidential Information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Services and its Content. You shall not make any copies or extracts of Confidential Information or include Confidential Information in Your own materials except as reasonably required to exercise the license granted under Section II(a). Any copies or extracts so made or information so included will include an appropriate legend identifying the same as constituting or containing Confidential Information of PhotonFi.

​ ​iv. You will use best efforts to cooperate with and assist PhotonFi in identifying and preventing any unauthorized use, copying, or disclosure of the Confidential Information, or any portion thereof. You will notify Ubiquiti immediately in the event of any unauthorized disclosure of any Confidential Information, and will use best efforts to assist PhotonFi in remedying such unauthorized disclosure.

​e. Speed and Latency Test.

​ ​i. When conducting a speed and/or Latency test through any Services on any device or platform, PhotonFi may collect: (a) the test results; (b) information about the approximate physical location of the device; and (c) other information, including, but not limited to, the IP address, the ISP name and other information about your network, system and devices (collectively, “Speed Test Data”). You acknowledge that certain speed test servers are owned or operated by third parties unaffiliated with PhotonFi, such as your internet service provider (“ISP”) or a mobile carrier. Such third parties may collect your IP address and other data about you during the speed and/or latency test.

​ ​ii. PhotonFi may process the Speed nd/or Latency Test Data for the following purposes: providing the speed and latency test service to you; improving PhotonFi products and services; and conducting analyses and preparing market reports for PhotonFi’s business customers.

​ ​iii. PhotonFi has a legitimate interest in carrying out the processing of the Speed and/or Latency Test Data for the purposes of managing, operating, improving or promoting PhotonFi’s products, services and business. PhotonFi also has a legitimate interest in sharing the Speed and/or Latency Test Data with ISPs and other business customers to help them understand and create a better and faster internet.

IV. Access to Services

​a. Account, Password and Security. To use the Services, You may be required to register for a user account (“Account”) and provide certain information about Yourself, including Personal Data, as prompted by the applicable registration form. You represent and warrant that: (i) all required registration information You submit is truthful and accurate; (ii) You will maintain the accuracy of such information; (iii) Your use of the Services do not and will not violate any U.S. or other applicable law or regulation and (iv) You are over the age of 13 (or equivalent minimum age in the jurisdiction where You reside or access or use the Services), and in the event You are between the age of 13 (or equivalent minimum age in the jurisdiction where You reside or access or use the Services) and the age of majority in the jurisdiction where you reside or access or use the Services, that You will only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. You are responsible for maintaining the confidentiality of Your passwords and You are solely responsible for all activities that occur under Your Account, whether by You or any Authorized User. You are solely responsible for any loss or damage You suffer as a result of Your failure to adequately safeguard Your password. You will immediately notify Ubiquiti of any unauthorized use of Your password or any other breach of security related to the Services. PhotonFi reserves the right to require You to alter Your password if PhotonFi believes that Your password is no longer secure. PhotonFi is not liable for any loss or damage arising from Your failure to comply with the above requirements. For purposes of this Section IV, “Access” means to use on and through computers owned or leased and controlled by You, or through Your Account.

​b. Authorized Users. You may permit the Services to be Accessed by Authorized Users through Your Account, subject to the Terms set forth herein, including without limitation in Section III(e). You are fully responsible for the compliance with these Terms by all such Authorized Users, and by any other person or entity that may have Access to the Services through You (whether or not such Access is permitted by these Terms).

​c. Automatic Updates. PhotonFi may, from time to time and at its sole option, provide patches, bug fixes, corrections, updates, upgrades, support and maintenance releases or other modifications to the Services, including certain External Software, which items shall be deemed part of the Services and External Software hereunder. YOU HEREBY CONSENT TO ANY SUCH AUTOMATIC UPDATES. These may be automatically installed without providing any additional notice to You or receiving Your additional consent. If You do not consent, Your remedy is to terminate Your Account and stop using the Services. Notwithstanding the foregoing, Ubiquiti withholds the right to require You to install any patches, bug fixes, corrections, updates, upgrades, support and maintenance releases or other modifications in order to Access and use the Services.

​d. Modifications to and Discontinuation of Services. PHOTONFI RESERVES THE RIGHT TO MODIFY THE SERVICES WITHOUT NOTICE TO YOU. PHOTONFI FURTHER RESERVES THE RIGHT TO DISCONTINUE THE SERVICES WITHOUT NOTICE TO YOU. To the extent reasonably practical, PhotonFi will provide You with notice prior to any discontinuation, unless PhotonFi is required to immediately discontinue the service in order to comply with any law or regulations.

​e. Continued Development. Provision of the Services, including, as applicable, any External Software, under these Terms does not create any obligation for PhotonFi to continue to develop, support, repair, offer for sale or in any other way provide or develop the Services or any External Software or other items. PhotonFi is under no obligation to provide technical support under these Terms, and provides no assurance that any specific errors or faults in the Services, including, as applicable, any External Software, will be corrected.

​f. Fees. PhotonFi reserves the right at any time to charge fees for access to current or new services of the Services or portions thereof. In no event will You be charged for Access to such services unless PhotonFi obtains Your prior agreement to pay such fees. If You do not consent to the payment of such fees, however, You may not have Access to paid services. Details regarding the services You will receive in exchange for the payment of fees, as well as any payment terms and conditions that apply, will be disclosed to You prior to Your agreement to pay such fees. All such terms will be deemed to be a part of (and are hereby incorporated by reference into) these Terms.

V. Term and Termination

​a. Term. These Terms will remain in full force and effect so long as You continue to access or use the Services, or until terminated in accordance with these Terms. You may discontinue Your participation in and access to the Services at any time.

​b. Termination and Suspension. WITHOUT LIMITING OTHER REMEDIES, PHOTONFI MAY (I) TERMINATE OR SUSPEND YOUR ACCESS TO OR RIGHT TO USE ALL OR PART OF THE SERVICES WITHOUT NOTICE OR (II) TERMINATE THESE TERMS WITH RESPECT TO YOU IF PHOTONFI DETERMINES, IN ITS SOLE AND ABSOLUTE DISCRETION, THAT YOU HAVE VIOLATED THESE TERMS OR HAVE ENGAGED IN ANY CONDUCT THAT PHOTONFI BELIEVES IS IN VIOLATION OF ANY APPLICABLE LAW OR REGULATION OR IS OTHERWISE HARMFUL TO THE INTERESTS OF PHOTONFI, ANY OTHER USER OR ANY THIRD PARTY. In addition to PhotonFi’s other legal rights and remedies, any unauthorized use or copying of the software that comprises the Services or Your failure to comply with any provisions of these Terms will result in the automatic termination of these Terms without notice to You. The Agreement will also automatically terminate if You go into liquidation, suffer or make any winding up petition, make an arrangement with Your creditors, or suffer or file any similar action in any jurisdiction in consequence of debt. If You transfer a Product to a new owner, Your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use that Product or any Services under Your Account and will need to register for a separate Account with Ubiquiti.

​c. CONSEQUENCES OF TERMINATION; SURVIVABILITY. Upon termination of these Terms or Your use of the Services, (i) Your Account and Your right to use the Services will automatically terminate, and (ii) You shall immediately cease using and shall destroy the software that comprises the Services and all other items in Your possession or control that are proprietary to PhotonFi. Termination of these Terms or Your use of the Services will not affect any rights or obligations of either party accruing up to termination nor any rights or obligations which by their nature may survive termination, including, but not limited to, those set forth in Sections II(d), II(e), II(f), II(g) and V(c) and Articles III and VI-XII.

VI. Disclaimers

​a. The warranty for the Product is set forth in the PhotonFi Limited Warranty.

​b. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PHOTONFI DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY PRODUCT OR SERVICE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SERVICES AND ITS FEATURES OR FUNCTIONALITY AND ANY COMMUNICATION WITH YOU IS FOR INFORMATION PURPOSES ONLY, AND DOES NOT CONSTITUTE A WARRANTY OR REPRESENTATION. WITHOUT LIMITING THE FOREGOING, PHOTONFI DOES NOT WARRANT THAT THE OPERATION, OUTPUT OR IMPLEMENTATION OF THE SERVICES WILL: (I) MEET YOUR REQUIREMENTS; (II) BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE OR COMPLETE; (III) BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; OR (IV) THAT PHOTONFI OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR FIX ANY ERRORS OR THAT SUCH RESOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.

​c. Emergency Response; High Risk Activities.

​ ​i. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES, WHETHER STANDING ALONE OR WHEN INTERFACED WITH PRODUCTS OR THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT CERTIFIED FOR EMERGENCY RESPONSE, AND ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. MOBILE OR OTHER NOTIFICATIONS REGARDING THE STATUS OF THE SERVICES ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR EMERGENCY RESPONSE OR ANY OTHER LIFE SAFETY OR CRITICAL PURPOSES.

​ ​ii. NONE OF THE SERVICES ARE DESIGNED, MANUFACTURED OR INTENDED FOR THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL, EMERGENCY AND SAFETY SERVICES, HEALTHCARE FACILITIES, HOSPITALS, LIFE SUPPORT SYSTEMS OR ANY MISSION CRITICAL ENVIRONMENT, WHERE THE USE OR FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). YOU AGREE THAT YOU WILL NOT USE THE SERVICES FOR ANY HIGH RISK ACTIVITIES.

​d. Delays. You acknowledge and agree that the Services are intended to be accessed and used for non-time-critical information and control of Products, and are subject to sporadic interruptions and failures for a variety of reasons beyond PhotonFi’s control, including, without limitation, Wi-Fi intermittency, service provider uptime and carrier failures. You acknowledge these limitations and agree that PhotonFi is not responsible for any damages allegedly caused by the failure or delay of the Services to reflect current status or notifications.

​e. Data Storage. PhotonFi is not responsible or liable for the deletion of or failure to store or process any information or other content provided by You, including any User Submissions or Feedback, or transmitted in the course of using the Services. You are solely responsible for securing and backing up such submissions.

​f. Versions. You acknowledge and agree that the Services provided to You under these Terms may be in “beta”, “alpha” or test form, labelled as “early access” or “UI Labs” or otherwise not intended or completed for commercial use and may therefore contain errors, bugs or similar unstable characteristics not typical of commercially released items. Such characteristics may negatively affect the operation of previously installed software or equipment. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the software and accompanying materials. You acknowledge that the Services may be provided to You from time to time as a program participant solely for the purpose of providing PhotonFi with Feedback on the Services and the identification of defects.

​g. Third Party Products and Services.

​ ​i. Certain information, products, software and services included in, sold, distributed, displayed, or transmitted with the Services or Products may comprise third party information, products, software and services (collectively, “Third Party Products and Services”).

​ ​ii. If You use any Third Party Products and Services, You agree and acknowledge that (i) PhotonFi does not control, and has no right to control, the providers of such Third Party Products and Services (the “Third Party Provider”), (ii) the Third Party Products and Services are solely provided by the Third Party Providers and not by PhotonFi, and (iii) You will not attempt to impose any liability on or seek any legal remedy from PhotonFi with respect to the Third Party Providers or the Third Party Products and Services. Your use of the Third Party Products and Services may be subject to separate terms and conditions from the Third Party Providers. PhotonFi does not endorse any Third Party Providers or Third Party Products and Services.

​ ​iii. If You are a Third Party Provider, You agree and acknowledge that You shall be solely responsible for any Third Party Products and Services provided by You or Your affiliates, including all obligations related to Your tax withholding, reporting, collection and remittance requirements. You represent and warrant that (i) all information relating to the Third Party Products and Services are complete, true and correct in all respects, (ii) You, Your affiliates and Your employees, agents, and contractors who may perform any work in connection with the Third Party Products and Services, are properly and fully qualified and experienced, and licensed, certified, bonded, and insured, as required by applicable laws or regulations to which they may be subject in the jurisdiction(s) in which they offer any Third Party Products and Services, (iii) You, Your affiliates and Your employees, agents, and contractors will perform any work in connection with the Third Party Products and Services in a timely, workmanlike, and professional manner in accordance with the highest standard of Your industry, and (iv) You, Your affiliates and Your employees, agents, and contractors will not present themselves as an employee, agent or affiliate of PhotonFi. You shall comply with all applicable laws, including any data privacy laws, in connection with any information You may receive in connection with the use of the Services and Your provision of any Third Party Products and Services. You shall indemnity, defend and hold harmless PhotonFi and its officers, employees and agents from and against any loss or liability resulting from or arising out of any claim: (a) relating to the inaccuracy, untruthfulness, or breach of any representation, covenant or warranty by You, Your affiliates and Your employees, agents, and contractors; (b) relating to actual or alleged personal injury, property loss or damage caused by any act or omission by You, Your affiliates and Your employees, agents, and contractors; or (c) relating to any act or omission by You, Your affiliates and Your employees, agents, and contractors in connection with the Third Party Products and Services.

​ ​iv. If PhotonFi facilitates any payments in connection with any Third Party Products and Services, You, as the recipient of the Third Party Products and Services or the Third Party Provider, agree and acknowledge that such payments are subject to and governed by the Ubiquiti Services General Terms and Conditions, which are incorporated herein by reference.

​ ​v. FOR THE AVOIDANCE OF DOUBT, PHOTONFI PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY THIRD PARTY PRODUCTS AND SERVICES OR ANY THIRD PARTY PROVIDERS. PhotonFi does not provide any warranty, maintenance, technical or other support for any Third Party Products and Services or their use with any Product or Service. Accordingly, PhotonFi is not responsible for Your use of any Third Party Products and Services or any personal injury, death, property damage (including, without limitation, to Your home), or other harm or losses arising from or relating to Your use of any Third Party Products and Services.

VII. Limitation of Liability

​a. UNDER NO CIRCUMSTANCES WILL PHOTONFI OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY OR OTHERWISE) FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF MONEY, REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM YOUR OR YOUR AUTHORIZED USER’S USE OF THE SERVICES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE). IF, NOTWITHSTANDING THESE TERMS, PHOTONFI IS FOUND TO BE LIABLE, THE LIABILITY OF PHOTONFI AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS, OR LICENSORS TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE FEES ACTUALLY PAID BY YOU TO PHOTONFI FOR THE SERVICES OR PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.

​b. Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above limitations and disclaimers may not apply to You. To the extent that PhotonFi may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of PhotonFi’s liability will be the minimum permitted under such applicable law.

VIII. Indemnification. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS PHOTONFI AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES AND FEES (INCLUDING REASONABLE ATTORNEYS’ FEES) THAT SUCH PARTIES MAY INCUR AS A RESULT OF OR ARISING FROM A VIOLATION OF THESE TERMS BY YOU OR ANY AUTHORIZED USER’S ACCESS TO THE SERVICES. YOU AGREE NOT TO SETTLE ANY SUCH CLAIM WITHOUT UBIQUITI’S PRIOR WRITTEN CONSENT. UBIQUITI RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, AND IN SUCH CASE, YOU AGREE TO COOPERATE WITH UBIQUITI’S DEFENSE OF SUCH CLAIM.

​

END USER LICENSE AGREEMENT (“EULA”)

This End User License Agreement (this “EULA”) governs Your access and use of the software (“Software”) that is embedded on any Photonfi Inc. product (“Product”).

The term “You,” “Your,” “you” or “your” as used in this EULA, means any person or entity who accesses or uses the Software and accepts the terms of this EULA, including any individuals that You authorize to use or access the Software, including Your independent contractors or employees (“Authorized Users”). For the avoidance of doubt, where the term “You,” “Your,” “you” or “your” is used in this EULA, it shall include any Authorized User, regardless of whether “Authorized User” is specifically stated.

FOR IMPORTANT DISCLAIMERS OF WARRANTY AND WARNINGS CONCERNING USAGE, SEE SECTION V.

YOU MUST READ AND AGREE TO THE TERMS OF THIS EULA BEFORE USING, DOWNLOADING OR INSTALLING ANY SOFTWARE. BY USING, DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, YOU MAY NOT USE, DOWNLOAD OR INSTALL THE SOFTWARE.

THE SOFTWARE MAY BE SUBJECT TO AUTOMATIC SOFTWARE UPDATES, AS DESCRIBED FURTHER IN SECTION III, AND YOU ALSO HEREBY CONSENT TO SUCH UPDATES. If You do not agree to such updates, You are not permitted to, and You must not, download, install, access or use the Software.

PhotonFi may, in its sole and absolute discretion, change the terms of this EULA from time to time, as indicated by the date at the end of this EULA. If You object to any such change, Your sole recourse will be to cease using the Software. Continued use of the Software following any such change will indicate Your acknowledgement of such change and agreement to be bound by the new terms and conditions.

1. Overview, Eligibility

​a. This EULA is a binding agreement between You and PhotonFi Inc. (“Photonfi”).

​b. Your use of (1) websites located at ww.photonfi.net and its sub-domains and any other websites hosted by PhotonFi or its affiliates, (2) services accessible or downloadable through the Sites, (3) software that may be downloaded to Your smartphone or tablet to access services and (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps is governed by the PhotonFi Terms of Service. Your purchase of the Product (excluding the Software) is governed by the PhotonFi Limited Warranty. All additional guidelines, terms, or rules on the Sites, including the PhotonFi Privacy Policy, are incorporated by reference into this EULA and You are agreeing to accept and abide by them by using the Software.

​c. Subject to Section (I)(d), You may access and use the Software only if You can form a binding contract with PhotonFi and only if You are in compliance with the terms of this EULA and all applicable laws and regulations. If You are accepting the terms of this EULA on behalf of an entity or individual, You represent and warrant that You have full legal authority to bind such entity or individual to this EULA. You are fully responsible for any Authorized User’s compliance with this EULA.

​d. If You are an Authorized User, You represent and warrant that You are over the age of 13 (or equivalent minimum age in the jurisdiction where You reside or access or use the Software), and in the event You are between the age of 13 (or equivalent minimum age in the jurisdiction where you reside or access or use the Software) and the age of majority in the jurisdiction where You reside or access or use the Software, that You will only use the Software under the supervision of a parent or legal guardian who agrees to be bound by this EULA. Any use or access to the Software by individuals under the age of 13 (or equivalent minimum age in the jurisdiction where you reside or access or use the Services) is strictly prohibited and a violation of this EULA.

2. License.

​a. License Grant. Subject to Your compliance at all times with the terms and restrictions set forth in this EULA, PhotonFi grants You, under its rights in and to the Software, a worldwide, non-sublicensable, non-transferable, non-exclusive, revocable, limited license to download and use the Software in object code form only, solely in connection with the Product that You own or control.

​b. Limitations on Use.

​ ​i. The Software, its contents, features and functionality (including, without limitation, all user interfaces, information, software, code, text, graphics, images, video and audio, and the design, selection and arrangement thereof) (collectively, the “Content”) are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

​ ​ii. You shall not directly or indirectly do any of the following:

​ ​ ​1. use the Software on any device other than a Product that is owned or controlled by You or Your business organization;

​ ​ ​2. sell, offer for sale, lease, license, sublicense or distribute the Software or any Content in any form without the prior written consent of PhotonFi;

​ ​ ​3. copy, reproduce, broadcast, transmit, republish, distribute, modify, prepare derivative works of, perform, publicly perform or display the Software or any Content in any way without the prior written consent of PhotonFi and its applicable licensors;

​ ​ ​4. remove or alter any copyright, trademark or other proprietary rights notices from the Software or Content, or use them in contravention of any such applicable notices;

​ ​ ​5. reverse engineer, decompile, translate, disassemble or otherwise attempt to (i) derive the source code or the underlying ideas, algorithms, structure or organization of any Software (except that the foregoing limitation does not apply to the extent that such activities may not be prohibited under applicable law); or (ii) defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Software, including, without limitation, any such mechanism used to restrict or control the functionality of the Software;

​ ​ ​6. use the Software in violation of any third-party rights or any local, state, national or international law or regulation;

​ ​ ​7. violate any accompanying user or technical manuals, training materials, specifications or other documentation pertaining to any Software, where in digital or printed format;

​ ​ ​8. engage in any High Risk Activities (as defined in Section (V)(b)(ii));

​ ​ ​9. release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of PhotonFi for each such release; or

​ ​ ​10. create a substantially similar software to the Software, or any component thereof.

​ ​iii. You are responsible for obtaining, properly installing and maintaining the Software and any other services or products needed for access to and use of the Software, and for paying all charges related thereto.

​ ​iv. You are responsible for complying with all applicable statutes, laws and regulations worldwide related to Your use of the Software and the Products. 

​c. Third Party Software.

​ ​i. Certain software included in, distributed with or downloaded in connection with the Software may comprise third party proprietary software products that are subject to separate license terms (“Third Party Software”). All such Third Party Software may include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software or under similar licensing or distribution models (“Open Source Software,” together with Third Party Software, “External Software”).

​ ​ii. Your use of External Software is subject in all cases to the applicable licenses from the External Software provider, which shall take precedence over the rights and restrictions granted in this EULA solely with respect to such External Software. You shall comply with the terms of all applicable Third Party Software and Open Source Software licenses, if any. Copyrights to Open Source Software are held by their respective copyright holders indicated in the copyright notices in the corresponding source files. The Software may include software developed by the OpenSSL Project for use in the OpenSSL Toolkit (http://www.openssl.org/).

​ ​iii. FOR THE AVOIDANCE OF DOUBT, PHOTONFI PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SUCH EXTERNAL SOFTWARE, INCLUDING WITH RESPECT TO FUNCTIONALITY OF SUCH EXTERNAL SOFTWARE. PhotonFi does not provide any warranty, maintenance, technical or other support for any External Software. Accordingly, PhotonFi is not responsible for Your use of any External Software or any personal injury, death, property damage (including, without limitation, to Your home), or other harm or losses arising from or relating to Your use of any External Software.

​d. Intellectual Property Ownership; Trade Secrets. All copyrights, trade secrets, patents, trademarks, trade secrets and other intellectual property and proprietary rights in any jurisdiction worldwide (collectively, “Intellectual Property Rights”) in and to the Software and the Content are the sole property of PhotonFi or its licensors. You do not have or receive any title or interest in or to the Software, the Content, or the Intellectual Property Rights contained therein through Your use of the Software or otherwise. Except as expressly granted to You under the limited license set forth in Section II(a) of this EULA, PhotonFi does not grant any express or implied right to You under any of its Intellectual Property Rights. You further acknowledge and agree that the Software contains the valuable trade secrets and proprietary information of PhotonFi, its affiliates and its licensors. You agree to hold such trade secrets and proprietary information in confidence and You acknowledge that any actual or threatened breach of this obligation will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.

​e. Trademarks. All trademarks, service marks, trade names and logos and the goodwill associated therewith (“Marks”) included or displayed in the Software or Content are the exclusive property of PhotonFi or their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of PhotonFi or such respective holders.

3. Automatic Updates.

​a. PhotonFi may, from time to time and at its sole option, provide patches, bug fixes, corrections, updates, upgrades, support and maintenance releases or other modifications to the Software, including certain External Software, which items shall be deemed part of the Software and External Software hereunder. YOU HEREBY CONSENT TO ANY SUCH UPDATES. These may be automatically installed without providing any additional notice to You or receiving Your additional consent. If You do not consent, Your remedy is to stop using the Software. Notwithstanding the foregoing, PhotonFi withholds the right to require You to install any patches, bug fixes, corrections, updates, upgrades, support and maintenance releases or other modifications in order to access and use the Software.

4. Term and Termination. This EULA will remain in full force and effect so long as You continue to access or use the Software, or until terminated in accordance with this EULA. You may discontinue Your use of and access to the Software at any time. PhotonFi will automatically terminate this EULA at any time without notice to you if you fail to comply with any term of this EULA. You may terminate it at any time upon written notice to PhotonFi at sales@photonfi.net. Upon any such termination, the licenses granted by this EULA will immediately terminate and you agree to stop all access and use of the Product, Software and documentation and destroy the Software and documentation, together with all copies and merged portions in any form. The provisions that by their nature continue and survive will survive any termination of this EULA, including those set forth in this Sections II(d), II(e) and Articles IV -IX.

5. WARRANTY DISCLAIMER

​a. Disclaimer of Warranties TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS LICENSED “AS-IS” AND “AS AVAILABLE”, WITH ALL FAULTS. PHOTONFI DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY OF SERVICE OR RESULTS, AVAILABILITY, SATISFACTORY QUALITY, LACK OF VIRUSES, TITLE, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FEATURES OR FUNCTIONALITY AND ANY COMMUNICATION WITH YOU IS FOR INFORMATION PURPOSES ONLY, AND DOES NOT CONSTITUTE A WARRANTY OR REPRESENTATION. WITHOUT LIMITING THE FOREGOING, PHOTONFI EXPRESSLY DOES NOT WARRANT THAT THE CONTENT, OPERATION, OUTPUT OR IMPLEMENTATION OF THE SOFTWARE WILL: (I) MEET YOUR REQUIREMENTS; (II) BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE OR COMPLETE; (III) BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE; (IV) OR THAT PHOTONFI OR ANY THIRD PARTY WILL RESOLVE ANY PARTICULAR SUPPORT REQUEST OR FIX ANY ERRORS OR THAT SUCH RESOLUTION WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.

​b. Emergency Response; High Risk Activities.

​ ​i. YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE, WHETHER STANDING ALONE OR WHEN INTERFACED WITH PRODUCTS OR THIRD-PARTY PRODUCTS OR SERVICES, ARE NOT CERTIFIED FOR EMERGENCY RESPONSE, AND ARE NOT A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. MOBILE OR OTHER NOTIFICATIONS REGARDING THE STATUS OF THE SOFTWARE ARE NOT A SUBSTITUTE FOR A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. YOU AGREE THAT YOU WILL NOT RELY ON THE SOFTWARE FOR EMERGENCY RESPONSE OR ANY OTHER LIFE SAFETY OR CRITICAL PURPOSES.

​ ​ii. NEITHER THE SOFTWARE NOR ANY PRODUCT IS DESIGNED, MANUFACTURED OR INTENDED FOR THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL, EMERGENCY RESPONSE, EMERGENCY AND SAFETY SERVICES, HEALTHCARE FACILITIES, HOSPITALS, LIFE SUPPORT SYSTEMS OR ANY MISSION CRITICAL ENVIRONMENT, WHERE THE USE OR FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). YOU AGREE THAT YOU WILL NOT USE THE SOFTWARE FOR ANY HIGH RISK ACTIVITIES.

​c. Data Storage. PhotonFi is not responsible or liable for the deletion of or failure to store or process any information or other content provided by You or transmitted in the course of using the Software. You are solely responsible for securing and backing up such submissions.

​d. Versions. You acknowledge and agree that the Software provided to You under this EULA may be in “beta” or test form, or otherwise not intended or completed for commercial use and may therefore contain errors, bugs or similar unstable characteristics not typical of commercially released items. Such characteristics may negatively affect the operation of previously installed software or equipment. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the software and accompanying materials. You acknowledge that the Software may be provided to You from time to time as a program participant solely for the purpose of providing PhotonFi with feedback on the Software and the identification of defects.

6. LIMITATION OF LIABILITY

​a. UNDER NO CIRCUMSTANCES WILL PHOTONFI OR ITS SUPPLIERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY OR OTHERWISE) FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF MONEY, REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THIS EULA OR THE INSTALLATION, MAINTENANCE, PERFORMANCE, FAILURE OR INTERRUPTION OR USE OF SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), EVEN IF PHOTONFI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THESE TERMS, PHOTONFI OR ANY OF ITS SUPPLIERS ARE FOUND TO BE LIABLE, THE LIABILITY OF PHOTONFI OR ITS SUPPLIERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS TO YOU OR TO ANY THIRD PARTY IS LIMITED TO ONE HUNDRED DOLLARS ($100). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.

​b. Exclusions and Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above limitations and disclaimers may not apply to You. To the extent that PHOTONFI may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of PHOTONFI’s liability will be the minimum permitted under such applicable law.

7. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS PHOTONFI AND ITS LICENSORS AND SUPPLIERS, AND THEIR RESPECTIVE AFFILIATES, OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS OR LICENSORS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES AND FEES (INCLUDING REASONABLE ATTORNEYS’ FEES) THAT SUCH PARTIES MAY INCUR AS A RESULT OF OR ARISING FROM A VIOLATION OF THIS EULA.

8. Export Restrictions.

​a. You acknowledge that the Software is licensed to you by a U.S. company. You represent and warrant that (i) You shall be solely responsible for complying with all export laws and restrictions and regulations, including United States export regulations, such as restrictions of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC") or other foreign agency or authority’s regulations ("Export Laws"), and You shall not (ii) export, or allow the export or re-export of, the Software in violation of any such restrictions, laws or regulations, or available in any country in contravention of any Export Laws, or any other law, nor (iii) make the Software available in a country for which an export license or other governmental approval is required without first obtaining all necessary licenses or other approvals. You shall obtain and bear all expenses relating to any necessary licenses and exemptions with respect to the export from the U.S. of the Software to any location.

​b. You acknowledge that the U.S. government maintains embargoes and sanctions against certain countries, currently including the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria, which may be amended from time to time, including with respect to listed countries; and that other countries may have trade laws pertaining to import, use, export or distribution of the Software. You acknowledge that, in each case, compliance with the same is Your responsibility. You represent and warrant that You are not a person or entity listed on any United States Government list of prohibited or restricted parties.

9. Miscellaneous.

​a. Governing Law; Jurisdiction. This EULA shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather, this EULA shall be governed by the laws of the State of Nevada, including its Uniform Commercial Code, without reference to conflicts of laws principles. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Nevada and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that PhotonFi may seek injunctive relief in any court having jurisdiction to protect its confidential information or intellectual property.

​b. Government Purposes. The Software was developed solely at private expense and is a “commercial item” consisting of “commercial computer software” and “commercial computer software documentation” within the meaning of the applicable civilian and military Federal acquisition regulations and any supplements thereto, as amended from time to time. If the user of the Software is an agency, department, employee or other entity of the United States Government, consistent with 48 C.F.R. 227.7202-1 through 227.702-4 (JUNE 1995), the use, duplication, reproduction, release, modification, disclosure and transfer of the Software, including technical data or manuals, is governed by the terms and conditions contained in this EULA.

​c. Severability. If any of the provisions, either in part or in full, of this EULA is held by a court or other tribunal of competent jurisdiction to be unenforceable or invalid, such provision shall be enforced to the maximum extent possible or permissible and this EULA will be interpreted so as to give maximum effect to the original intent of the parties with respect to the unenforceable provision, and the remaining portions of this EULA shall remain in full force and effect.

​d. Assignment. You may not assign any of Your rights or obligations under this EULA without Ubiquiti’s express written consent. PhotonFi may assign this EULA without Your consent provided that such assignment is to an affiliated company forming part of the PhotonFi group of companies.

​e. Waiver. The waiver by either party of any default by the other party shall not waive subsequent defaults by such other party of the same or different kind. The failure of either party to enforce the provisions hereof, at any time or for any period of time, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.

​f. Third Party Beneficiary. Licensors and suppliers of PhotonFi and its affiliates are third party beneficiaries of this EULA, and thus this EULA is directly enforceable by such licensors and suppliers and their affiliates.

​g. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action You may have arising out of or related to use of the Software or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred.

​h. Interpretation. As used herein, unless the context requires otherwise, the word “or” is not exclusive and the words “will,” “will not,” “shall,” and “shall not” are expressions of command and not merely expressions of future intent or expectation. Whenever the words “include,” “includes” or “including” are used in this EULA, they shall be deemed to be followed by the words “without limitation.” The section headings in this EULA are for convenience only and have no legal or contractual effect.

​

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