Aplix Product Warranty and Liability Statement
BY PURCHASING THE APLIX MYBEACONTM or IOTIZRTM PRODUCT(S) ("PRODUCT"), REGARDLESS OF WHO YOUR SELLER IS, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS APLIX PRODUCT WARRANTY AND LIABILITY STATEMENT (“STATEMENT”) AS SET OUT BELOW. DO NOT PURCHASE THE PRODUCT UNTIL YOU HAVE READ THE TERMS OF THIS STATEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS STATEMENT, DO NOT PURCHASE THE PRODUCT.
EXCEPT AS SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED AS IS AND WITH ALL FAULTS, AND APLIX DOES NOT WARRANT THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. THE WARRANTY AND THE REMEDIES SET FORTH IN SECTION 1 ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. APLIX HEREBY DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS. IF SUCH WARRANTIES UNDER APPLICABLE LAW CANNOT BE LEGALLY DISCLAIMED OR THE FOREGOING DISCLAIMER IS NOT LEGALLY EFFECTIVE, APLIX HEREBY LIMITS THE DURATION AND REMEDIES OF SUCH NON-DISCLAIMABLE WARRANTIES TO THE DURATION OF THE WARRANTY IN SECTION 1 ABOVE AND, AT APLIX'S OPTION, THE REFUND, REPAIR OR REPLACEMENT SERVICES DESCRIBED IN SECTION 1 ABOVE. THE DISCLAIMERS OF THIS SECTION 2 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
The Warranty does not apply: (a) to consumable parts or components, such as batteries or protective coatings; (b) to cosmetic damage, including but not limited to scratches, dents and broken plastic on ports; (c) to non-Aplix branded parts or components, or to parts and components not manufactured by Aplix, even if packaged with or included in the Product; (d) to damage or defects caused by use with another product; (e) to damage or defects caused by accident, abuse, misuse, liquid contact, fire, earthquake or other external cause, or improper storage; (f) to damage or defects caused by operating the Product outside or in violation of Aplix's published guidelines or specifications; (g) to damage or defects caused by services (including upgrades and expansions) performed by anyone who is not a representative of Aplix or an Aplix-authorized service provider; (h) to a Product that has been modified or altered (or whose software or firmware has been altered or replaced in whole or in part) without the prior written permission of Aplix; (i) to defects caused by normal wear and tear or otherwise due to the normal aging of the Product; (j) to software or firmware distributed by Aplix (refer instead to the license applicable to such software); (k) if any serial number and/or lot number has been removed or defaced from the Product; or (l) if it is reasonably apparent from inspection of the Product that the obligations of this Statement or Services Terms have been breached. Products are not designed, intended or authorized for use as a component in "Critical Applications", defined as (m) life support, medical or safety devices, including any devices intended for implantation in the human body, or (n) the use, design, construction, operation or maintenance of any nuclear facility, aviation equipment, or other applications, products, facility or equipment whose failure could cause injury or death. Sale for such use is subject to Aplix's advance written authorization and a separate indemnification agreement signed by Purchaser. Purchaser is solely responsible for compliance with all legal, regulatory, and safety-, security-, data- and privacy-related requirements concerning its products and the use, distribution and sale of the Products, notwithstanding any information, consulting, support or services Aplix provides to Purchaser. No manufacturer, reseller, distributor or other party is authorized to make any modifications or additions to the Warranty.
4.Limitation of Liability
4.1 EXCEPT AS PROVIDED IN THIS WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APLIX IS NOT RESPONSIBLE OR LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OR RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING TORT OR CONTRACT THEORIES OF RECOVERY), AND UNDER ANY CLAIM, LIABILITY, EXPENSE OR LOSS, ARISING FROM OR RELATED TO THE "SUBJECT MATTER" (defined as this Statement or breach or compliance therewith, the Products and the use and distribution thereof, and any services, consultation or information Aplix provides, including network services, SaaS, application provisioning, notifications, and order fulfillment and processing), INCLUDING BUT NOT LIMITED TO: LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE OR CORRUPTION OF DATA; OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED INCLUDING THE REPLACEMENT OF EQUIPMENT AND PROPERTY, ANY COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH THE PRODUCTS, OR ANY FAILURE TO MAINTAIN THE INTEGRITY OR CONFIDENTIALITY OF INFORMATION STORED ON OR PROCESSED VIA THE PRODUCTS. SUCH DAMAGES ARE HEREBY WAIVED AND DISCLAIMED, EVEN IF APLIX HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 EXCEPT AS PROVIDED IN THIS WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APLIX'S TOTAL MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS, LIABILITIES OR OBLIGATIONS ARISING UNDER OR RELATING TO THE SUBJECT MATTER, REGARDLESS OF THE THEORY OF LIABILITY, WILL IN NO EVENT EXCEED ALL AMOUNTS PAID BY PURCHASER TO APLIX FOR THE PARTICULAR PRODUCT(S) GIVING RISE TO THE CLAIMS, LIABILITIES, LOSSES OR EXPENSES, IF ANY; EXCEPT THAT IF THE SERVICES TERMS SPECIFY A LIABILITY CAP THAT IS LOWER THAN THE FOREGOING, THE SERVICES TERM LIABILITY CAP WILL APPLY IN LIEU OF THIS SECTION.
4.3 LIABILITY FOR DAMAGES WILL BE SO LIMITED AND EXCLUDED AS SET FORTH IN THIS SECTION 4, REGARDLESS OF THE VALIDITY OR EFFICACY OF ANY REMEDY AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS, OR ANY STATUTORY LIABILITY FOR INTENTIONAL AND GROSSLY NEGLIGENT ACTS AND/OR OMISSIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Purchaser will indemnify, defend and hold harmless Aplix, and its and its affiliates directors, officers, employees, representatives, agents, distributors, and assigns, against any and all liabilities, losses, costs, damages, judgments, and expenses, arising out of any claim, demand, investigation, lawsuit, regulatory action or other cause of action, arising out of, related to or associated with (a) claims or demands brought against Aplix or Purchaser by any employee, agent, customer or end user of Purchaser; (b) Purchaser's business activities, products, applications and services; (c) unauthorized use of the Products or related software and services, or breach of or failure to comply with this Statement or Services Terms; or (d) Critical Applications. The foregoing indemnity applies even if it is alleged that Aplix was negligent or reckless regarding the design or manufacture of the Products or in the provision of information, data or services.
6.1 Any Purchaser, and Purchaser's affiliates, and its and their employees, officers, and agents, will not reverse engineer, decompile, open the casing, break down, disassemble or otherwise attempt to derive the source code, data structures, interfaces, techniques, processes, algorithms, know-how or other information from the Products (collectively, "Reverse Engineering") or permit or induce the foregoing. If however, directly applicable law prohibits enforcement of the foregoing, Purchaser may engage in Reverse Engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of independently created software with the Products, or as otherwise and to the limited extent permitted by directly applicable law, but only if: (a) Reverse Engineering is strictly necessary to obtain such information; and (b) Purchaser has first requested such information from Aplix and Aplix failed to make such information available under reasonable terms and conditions. Any information supplied to or obtained by Purchaser under this section will not be disclosed to any third party.
6.2 Purchaser may use the Products solely in connection with Aplix software products and related network and other services, and only so long as Purchaser is in agreement and strict compliance with the Services Terms (if applicable). All Aplix software including SDKs, firmware, and circuitry in the Products ("Aplix Software"), is the mask-work- and/or copyright-protected confidential information of Aplix, and all copies thereof are licensed, not sold. Any modification or alteration of the functionality, display or output of such Aplix Software is prohibited.
6.3 No right, title, license or interest is granted under any Aplix or third party patents, trademarks, servicemarks, branding or logos, including any of the foregoing related to standards certification or regulatory approvals.
6.4 For those Products that have secured various certifications and/or regulatory approvals of standards-setting organizations (such as the Bluetooth SIG) and relevant governmental entities, such approvals and certifications apply only if the Products are used "AS IS" and without modification. The following activities are not covered by any such approvals/certifications, and Aplix assumes no responsibility or liability for any losses, claims, damages, or other ramifications arising from or related to such activities: (a) changes, revisions, or supplements to the switch and sensor other than those as set out in the user manual; (b) modifications to wireless features, for example, by changing the external amplifier circuit; (c) modifications or deletions of the circuit in whole or in part; (d) use with antenna cables other than those designated by Aplix; (e) implementing any changes to the Product's frequency, voltage, power, or current; (f) any other changes, extensions or alterations of the functionality (inputs and outputs) of the Products not approved by Aplix in writing in advance; and (g) misrepresentations or inaccuracies as to Product source or branding.(end of Statement)