Best Energy Reduction Technologies, LLC (BERT)
Please read the following terms and conditions (“Terms”) carefully. If you do not agree to the following terms and conditions, do not download or install any of our software applications (each, an “Application”). By downloading, installing or using any Application, you agree to these Terms.
1. USE OF THE BERT APPLICATIONS
This agreement (“Terms”) is entered into between you (“you” or “your”) and Best Energy Reduction Technologies, LLC (“BERT”). Subject to these Terms, you are hereby granted the non-transferable right to use the BERT Applications in connection with equipment or hardware made, sold or distributed by BERT (“Hardware”). You may use the Applications for your personal use with BERT Hardware, or you may distribute the Application to others (e.g., as a software reseller) for use with BERT Hardware. However, Applications may not be used with any equipment or hardware other than BERT Hardware.
You may not use any Application in any manner that may impair, overburden, damage, disable or otherwise compromise (i) BERT’s services, Applications or Hardware; (ii) any other party’s use and enjoyment of BERT’s services, Applications or Hardware; or (iii) the services or products of any third parties (including, without limitation, the device on which you use the Applications). You agree to comply with all applicable laws and regulations governing the downloading, installation and/or use of the Applications.
From time to time, BERT may automatically check the version of each Application and, if applicable, provide updates for the Application (“Updates”). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins and new versions of an Application. By installing an Application, you authorize the automatic download and installation of Updates, and you agree to download and install Updates manually if necessary. Your use of each Application and Updates to that Application will be governed by these Terms (as amended by any terms and conditions that may be provided with Updates).
BERT reserves the right to temporarily disable or permanently discontinue any and all functionality of any Application at any time without notice and with no liability to you.
If you need to contact BERT about any BERT Application, you may do so by emailing support@BERTbrain.com, or writing to:
Best Energy Reduction Technologies, LLC
840 First Avenue
King of Prussia, PA 19406
BERT may track, collect, process, store and share information regarding your use of each Application (“Use Information”). Use Information may include personally-identifiable information (“Personal Information”). Use Information may be stored and processed in the United States or any other country in which BERT or its agents maintain facilities. By using any Application, you consent to the collection, processing, storage and transfer of your Use Information in and to any country in the world for any purpose now known or hereafter developed.
3. PROPRIETARY RIGHTS
You hereby acknowledge that BERT owns all right, title and interest in and to each Application and to any and all proprietary and confidential information contained therein (“BERT Information”). Each Application and the BERT Information are protected by applicable intellectual property and other laws, including patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree that you will not (and will not allow any third party to) (i) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer or disassemble any Application or otherwise attempt to derive source code from any Application; (ii) copy, distribute, transfer, sell or license any Application except in connection with BERT Hardware; (iii) take any action to circumvent, compromise or defeat any security measures implemented in an Application; (iv) use an Application to access, copy, transfer, retransmit or transcode BERT content or any other content in violation of any law or third party rights; (v) remove, obscure, or alter BERT’s (or any third party’s) copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed through an Application.
Any content or information made available through the BERT Application is protected by applicable intellectual property rights and is the property of BERT, its third party licensors and partners (as applicable), and other entities that provide such content to BERT. You may not (or enable others to) copy, distribute, display, modify, or otherwise use the BERT content except as it is provided to you through the Application. BERT and its licensors make no representations or warranties regarding the accuracy or completeness of the BERT content.
4. EXPORT RESTRICTIONS
BERT does not represent that any Application is appropriate or available for use in any geographical location. Any entity choosing to use an Application is solely responsible for compliance with all applicable laws. Each Application is subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or included in other U.S. orders, laws or regulations that prohibit exports to named or referenced entities or persons (collectively, the “U.S. Prohibited Party Lists”). By downloading and/or using an Application, you represent and warrant that you are not (a) located in or a national or resident of any country noted above that is subject to U.S. trade sanctions, or (b) on any U.S. Prohibited Party List or acting on behalf of any person or entity on any such list.
You may terminate these Terms at any time by permanently deleting an Application in its entirety, whereupon (and without notice from BERT) any rights granted to you herein will automatically terminate. If you fail to comply with any provision of these Terms, any rights granted to you herein will automatically terminate. Similarly, BERT may terminate these Terms at any time upon notice to you. In the event of such termination, you must immediately delete or destroy all copies of each Application in your possession or under your control. Those provisions that reference or preserve the rights or responsibilities of either party after termination or expiration of these Terms shall survive any termination or expiration of these Terms.
You agree to hold harmless and indemnify BERT and its subsidiaries, affiliates, officers, agents, and employees (and their subsidiaries, affiliates, officers, agents, and employees) from and against any claim, suit or action arising from or in any way related to your use of an Application or your violation of these Terms, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, BERT will promptly provide you with written notice of such claim, suit or action.
7. DISCLAIMER OF WARRANTIES
EACH APPLICATION IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BERT EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
YOUR USE OF EACH APPLICATION IS AT YOUR SOLE RISK. BERT SHALL NOT BE OBLIGATED TO PROVIDE YOU WITH ANY MAINTENANCE OR SUPPORT SERVICES IN CONNECTION WITH ANY APPLICATION.
BERT MAKES NO WARRANTY (I) THAT ANY APPLICATION WILL MEET YOUR REQUIREMENTS; (II) THAT ANY APPLICATION WILL BE ERROR-FREE; (III) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF ANY APPLICATION; OR (IV) THAT ANY ERRORS IN ANY APPLICATION WILL BE CORRECTED.
ANY CONTENT OR MATERIAL YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH ANY APPLICATION IS OBTAINED AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE (OR ANY OTHER DEVICE) OR ANY LOSS OF DATA THAT MAY RESULT FROM DOWNLOADING ANY SUCH CONTENT OR MATERIAL.
APPLICATIONS ARE NOT INTENDED FOR USE IN ANY ACTIVITIES DURING WHICH THE FAILURE OF ANY APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BERT OR THROUGH AN APPLICATION SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS.
8. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BERT SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BERT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE AN APPLICATION; (II) THE INABILITY TO USE AN APPLICATION TO ACCESS CONTENT OR DATA; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (V) ANY OTHER MATTER RELATING TO ANY APPLICATION. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
9. EXCLUSIONS AND LIMITATIONS
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS STATED IN THESE TERMS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. ENTIRE AGREEMENT; REVISIONS TO AGREEMENT.
BERT may, from time to time, modify these Terms. Such modifications shall be effective as soon as the modified version of these Terms is posted on the BERT website (currently at www.BERTbrain.com), or made available to you by electronic mail or in any other written form. You can determine when these Terms were last revised by referring to the “Last Updated” legend at the top of then-current version of these Terms. Your use of an Application following the issuance of new or revised set of these Terms constitutes your acceptance of the revised version of these Terms.
11. GENERAL PROVISIONS
These Terms and the legal relations between the parties shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, and the federal laws of the United States of America, without reference to conflict-of-laws provisions or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The parties hereby agree that any dispute which cannot be resolved amicably by the parties shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules. Hearings will be conducted by audio conference or video conference. The arbitration award shall be final and binding on the parties, and may be entered and enforced in any court or tribunal of competent jurisdiction.
These Terms are the complete and exclusive statement of the agreement between the parties with respect to the subject matter hereof and supersedes all other communications or representations or agreements (whether oral, written or otherwise) relating thereto. The failure of either party at any time to require performance of any provision of these Terms in no manner shall affect such party’s right at a later time to enforce the same. No waiver by either party of any breach of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any other such breach, or a waiver of any other breach of these Terms. If any provision of these Terms shall to any extent be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of these Terms shall in no way be affected or impaired thereby and each such provision of these Terms shall be valid and enforceable to the fullest extent permitted by law. In such case, these Terms shall be reformed to the minimum extent necessary to correct any invalidity, illegality or unenforceability, while preserving to the maximum extent the rights and commercial expectations of the parties hereto, as expressed herein. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Application or these Terms must be filed by either party within two (2) years after such claim or cause of action arose or be forever barred. The section headings in these Terms are for convenience only and have no legal or contractual effect.