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System Terms & Conditions

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Canary System Terms &amp. Conditions Last Updated: January 20th, 2020 <ol> <li>Accepting the System Terms and Conditions</li> <li>Additional Terms That Apply</li> <li>Your Privacy</li> <li>Eligibility to Use our Products</li> <li>Using our Products</li> <li>Requirements to Use our Products</li> <li>Registration and User Accounts</li> <li>Security of Your Information</li> <li>Integration With Third-Party Platforms and Services</li> <li>Electronic Communications</li> <li>Termination and Suspension of Services</li> <li>Mobile Applications</li> <li>Unsupported Countries</li> <li>Our Intellectual Property Rights</li> <li>Disclaimer of Warranties and Indemnification</li> <li>Our Limitation of Liability</li> <li>Disputes with Canary</li> <li>Other Terms</li> <li>Changes to These Terms</li> <li>Contact Us</li> </ol>1. Accepting the System Terms and ConditionsAt Canary, we provide (i) our website located at www.canary.is and related domains (collectively, the “Sites”), (ii) software that you may download to a mobile device (“Mobile Apps”), (iii) services accessible through our Sites and the Mobile Apps (“Canary Services”) and (iv) home security devices, accessories and other hardware (“Equipment”). We refer to our Sites, Mobile Apps, Canary Services and Equipment collectively as our “Products.” By accessing or using the Products, you agree to be bound by these Terms, which are a contract between you and Canary. If you are a resident of the US or Canada, these Terms are an agreement between you and Canary Connect, Inc., otherwise, these Terms are an agreement between you and Canary Technology Europe, Limited. In these Terms references to “Canary” “us”, “we” and “our” mean either Canary Connect, Inc. or Canary Technology Europe, Limited, as appropriate. These Terms give you specific legal rights. You may also have other rights, which vary from jurisdiction to jurisdiction. BY CLICKING “I ACCEPT” OR BY ACCESSING AND USING THE PRODUCTS, YOU ARE AGREEING TO ALL THE TERMS &amp. CONDITIONS (“TERMS”) BELOW. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT CLICK “I ACCEPT” AND DO NOT USE THE PRODUCTS. PLEASE NOTE THAT SECTION 17 OF THESE TERMS CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH CANARY. YOU MAY OPT OUT OF ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW. 2. Additional Terms That ApplyThese Terms govern your use of the Products. Certain additional paid services or features that Canary may offer (such additional cloud data storage and other premium or Membership services) have additional or different terms. Canary’s Limited Warranty, End User License Agreement (for software embedded in the Product), Website Terms of Service, and other documents referenced or available by hyperlink at https://canary.is/legal may also govern your rights and are essential terms of use of the Product and applicable software and are incorporated into these Terms.3. Your PrivacyOur Privacy Policy explains how we treat your personal information and how we protect your privacy and safeguard the privacy of others when you use the Products. By using the Products, you acknowledge that we will collect, access, process, store and use your information in accordance with the Privacy Policy and any privacy settings which we may provide to you. To the extent that we process your Video Feeds (as defined in the data protection addendum (“Addendum”) attached as Schedule 1), we do so on your behalf and in compliance with these Terms and Section 5 of the Addendum. You shall comply with all your obligations described in the Addendum including those in Section 6. We respond to notices of alleged intellectual property rights infringement and may terminate the accounts of infringers.4. Eligibility to Use our ProductsBy using the Products, you acknowledge and agree that you are at least 18 years of age or the age of majority in the location from where you access and use the Products. If you are under 18 but are at least 16 years old you agree that you are using the Products with the consent of your legal guardian. If you are not at least 16 years old, you may not use the Products at any time or in any manner or submit any information to Canary or the Products. You may only access and use the Products if you are (a) able to enter into a binding contract with Canary, and (b) in compliance with these Terms and all applicable local, state, national, and international laws, regulations and rules.5. Using our ProductsCanary provides content through the Products that is copyrighted and/or trademarked work of Canary or Canary’s third-party licensors (collectively, the “Materials”). Materials may include logos, graphics, video, images, text, software, and other content. Subject to these Terms, Canary grants you a limited, personal, non-exclusive, non-transferable license to use and to display the Materials, and to access and use the Products solely for your personal use. You shall not directly or indirectly do any of the following: (i) modify, disassemble, decompile, or reverse engineer any of the hardware or software that constitutes the Services. (ii) rent, lease, loan, resell, sublicense, distribute, or otherwise transfer the Products to any third-party or use the Services on a time sharing basis or to provide any security or other services for any third party. (iii) make any copies of the software used to provide the Products. (iv) remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Services. (v) delete the copyright and other proprietary rights notices on the Products. (vi) attempt to access, monitor, or use Products of other customers. (vii) use the Products in connection with accessing or monitoring any non-Canary equipment. (viii) access the Products in order to build a similar or competitive product. (ix) upload, transmit, or distribute any computer viruses, worms, or software intended to damage or alter a computer or communication network, computer, handheld mobile device, data, the Services, the Product, or any other property. (x) interfere with, disrupt, or attempt to gain unauthorized access to the servers or networks connected to the Products. or (xii) violate any applicable law or regulation.6. Requirements to Use our ProductsYou are responsible for having all required software, hardware, and other system elements and making sure that they are compatible and properly configured. You acknowledge that (a) Canary cannot provide the Products properly if requirements and compatibility are not met, and (b) you will not receive notifications from your Equipment when the Product’s internet connection or power is lost, not operating properly, cut, or interfered with, or the Product is damaged or destroyed. You must have a working broadband internet connection and either a wired ethernet connection (for certain Products) or a Wi-Fi router (802.11 b/g/n), a supported mobile device (to use the Mobile Application), and other hardware, software, equipment or items specified by Canary from time to time. We recommend a high-speed internet connection with at least 1 Mbps of upload bandwidth. Canary reserves the right to change any of the minimum system requirements at any time.7. Registration and User AccountsTo create an account you must submit your information through the registration page as prompted on the Mobile Application or our Sites, including your name, email address, phone number, zip code/post code, and address. You may provide additional optional information during setup which is not required to register for an account but may be necessary to provide you with full access to our Products, to provide you with a trial of premium or Membership services, or might be helpful to Canary in providing you with a more customized experience. This information could include, for example, payment information, which would be processed in accordance with Canary’s Sales Terms and Premium Services. As part of the registration process, you will create a password that will allow you to log in to the Products. You are responsible for maintaining the confidentiality of your password and for all activities that occur on your account. You agree not to share your password, let others access or use your password, or do anything else that might jeopardize the security of your password. All the information that you provide when registering for an account and otherwise through the Site must be accurate, complete, and up to date. You may change, correct, or remove any information from your account by either logging into your account directly and making the desired changes or contacting Canary’s support team. Location Owners &amp. Location Members The individual who first creates an account and sets up the Product is the owner of the Canary Product associated with that account and the primary account holder (“Location Owner”). Individuals who are authorized to access a Location Owner’s Products and Services are authorized users (“Location Members”) under the Location Owner’s account and are invited through the Mobile Application. Location Members may have the ability to use the Products and monitor and control the Products (for example, a Location Member can arm or disarm the Product or sound the Siren). Location Members may also have the ability to view information (including personal information) and content across all of Location Owner’s Products (for example, a Location Member will receive notifications of events or can view video). Location Members are responsible for their own actions in connection with the Products and Services, but the Location Owner also agrees to be fully responsible for all actions taken by a Location Member relating to the Products and Products. Once invited by a Location Owner, Location Members can also invite other individuals to join the account as new location members. If you are a Location Owner, you should therefore authorize only those individuals that you trust to access your account and the Services. Location Owners have special privileges associated with their account and are the only individuals that can authorize specific actions or settings. For example, Location Owners are solely authorized to request location level data be deleted, to transfer ownership of the Product, or to subscribe to paid features, such as Canary’s subscription plans. Please note that for security reasons, Canary will not determine or change ownership of Equipment for any reason without the express written consent of the individual designated as the “Location Owner” at Equipment setup. If you transfer your Equipment to a new owner, your right to use the Products with respect to that Equipment will automatically terminate. The new owner cannot use the Products under your account and will need to register for a separate account with Canary.8. Security of Your InformationCanary cares about the integrity and security of its users’ personal information. Canary uses industry best practices when it comes to security. Canary has also conducted third-party security audits with respect to the Services. Despite taking these steps, Canary cannot guarantee that unauthorized third parties will never be able to defeat Canary’s security measures. You acknowledge that you provide your personal information and your use of the Services is at your own risk.9. Integration With Third-Party Platforms and ServicesCanary may allow you to integrate Canary Products with one or more third-party products or services. For example, Canary currently integrates with the Wink Smart home platform, which allows you to change modes on your Equipment directly from the Wink mobile application. You decide whether and with which Third-Party Products or Services you want to interface. Your explicit consent and authorization is required for this interface, and is revocable by you at any time. Once your consent is given for a particular Third-Party Product and Service, you agree that Canary may exchange information and data regarding you and your Products, including your account information in order to enable the interface you have authorized to work together with Canary Products. Once this information is shared with the particular Third-Party Product and Service, its use will be governed by the third party's privacy policy and terms of service.10. Electronic CommunicationsBy using the Services, you consent to receiving service related electronic communications from Canary, which may include notices about applicable fees, transactional information, and other information related to the Services. You agree that any notices, agreements, disclosures, or other communications that we send you electronically will satisfy any legal requirements, including that such communications be in writing.11. Termination and Suspension of ServicesThese Terms continue in effect while you access and use the Services. At any time, Canary may (i) suspend or terminate your rights to access or use the Services (which include, for avoidance of doubt, any Premium Services), or (ii) terminate these Terms if Canary in good faith believes that you have used the Services in violation of these Terms, including any incorporated guidelines or terms. Upon termination of this Agreement, your right to use the Services will automatically terminate. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability, governing law &amp. jurisdiction and general provisions shall survive any termination of these Terms. Canary may temporarily suspend the Services without notice for security reasons, system failure, maintenance and repair, or other circumstances. Canary does not offer any specific uptime guarantee for the Services. Any termination or suspension of any Services (including Premium Services) will not result in any credit or refund of any kind.12. Mobile ApplicationsCanary does not warrant that the Mobile Application will be compatible with your mobile device. Other applications may interact with the Mobile Application in unpredictable ways, and Canary does not warrant against malfunctions or errors caused by such interactions. Canary grants to you a non-exclusive, non-transferable, revocable license to use any object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you for your personal use in connection with the Services. Canary and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application. Standard carrier data charges may apply to your use of the Mobile Application. The following additional terms and conditions apply with respect to the Mobile Applications: <ul> <li>You acknowledge that these Terms are between you and Canary only, and not with Apple, Inc. (“Apple”) or Google, Inc. (“Google”).</li> <li>Your use of Canary’s Mobile Application must comply with Apple’s then-current App Store Terms of Service and Google’s then-current Google Play Terms of Service.</li> <li>Canary is solely responsible for our Mobile Applications and the Services. You acknowledge that Apple and Google have no obligation to provide maintenance and support services with respect to our Mobile Applications.</li> <li>You agree that Canary is solely responsible for addressing any claims by you or any third party relating to the Mobile Applications, including, but not limited to: (i) product liability claims. (ii) any claim that the Mobile Application fails to conform to any applicable legal or regulatory requirement. and (iii) claims arising under consumer protection or similar legislation, and that all such claims are governed solely by these Terms and any applicable laws.</li> <li>You agree to comply with all applicable third-party terms of agreement when using the Mobile Applications.</li> <li>The parties agree that Apple and Google are third-party beneficiaries to these Terms as they relate to your license of Canary’s Mobile Applications.</li> </ul> Apple, the Apple logo, and iPhone, are trademarks of Apple, Inc., registered in the U.S. and other countries. App Store is a service mark of Apple, Inc. Android is a trademark of Google, Inc.13. Unsupported CountriesAlthough the Services are accessible worldwide, Canary’s Services are not available to all persons or in all countries, including persons and countries prohibited by US law. If you are accessing or using the Services from an unsupported country, you do so on your own initiative and you are solely responsible for complying with applicable local laws.14. Our Intellectual Property RightsCanary is the exclusive owner of rights and interests in and to the mark Canary, the C logo, the Canary logo, Canary Flex, and Live Life in the Know in the United States and abroad. Other trademarks, names, and logos on or available through the Services are the property of their respective owners. Unless otherwise specified in these Terms, all technology and intellectual property available or appearing on or through any of the Services, including the Mobile Application, information, software, documents, services, content, site design, text, graphics, logos, images, and icons, are the sole property of Canary or its licensors. All rights not expressly granted herein are reserved by Canary.15. Disclaimer of Warranties and IndemnificationThe warranty for the Canary Product is set forth in the Canary Limited Warranty. CANARY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE PRODUCTS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS AND MATERIALS AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WHERE-IS” BASIS, AND CANARY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. Canary does not provide any warranties against viruses, spyware, or malware that may be installed on your mobile device or computer. Canary’s equipment and Services cannot eliminate occurrences of the events they are intended to detect or avert, including fires, floods and burglaries. Other than as expressly set forth in the Canary Limited Warranty, Canary makes no guarantee or warranty that the Canary product or Services will detect or avert such incidents. You release, waive, discharge, and promise not to sue or bring any claim of any type against Canary for loss, damage, or injury relating in any way to the Product or Services. Canary and its licensors and suppliers make no warranty that defects will be corrected or that the Services (i) will meet your needs or requirements. (ii) will be compatible with your home network, computer, or mobile device. (iii) will be available on an uninterrupted, timely, secure, or error-free basis. (iv) will be accurate or reliable. or (v) will give notifications at any given time or at all. No advice or information, whether oral or written, obtained by you from Canary or through the Services shall create any warranty. uman error is always possible, and the response time of police, fire, and medical emergency personnel is outside the control of Canary. You may not receive alarm signals if communication lines or power is interrupted for any reason. MOBILE NOTIFICATIONS FROM YOUR CANARY PRODUCT ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. If any other person, including your subrogating insurer, makes any claim or files a lawsuit against Canary in any way relating to the Products or Services, you shall indemnify, defend and hold Canary harmless from the claim or lawsuit, including the payment of all damages, expenses, costs, and attorney’s fees.16. Our Limitation of LiabilityIN NO EVENT SHALL CANARY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF CANARY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE. CANARY’S TOTAL LIABILITY ARISING FROM OR RELATED TO ANY OF THE PRODUCTS OR THE PRODUCTS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO CANARY OR CANARY’S AUTHORIZED RESELLER FOR THE PRODUCTS OR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). Nothing in these Terms (including anything specified in this "Our Limitation of Liability" provision) shall attempt to exclude or limit liability that cannot be excluded or limited under applicable law. These limitations apply to the maximum extent permitted by law and notwithstanding any failure of the essential purpose of these Terms or any limited remedy hereunder. Time Limit to Bring Claims No suit or action may be brought against Canary more than one year after the date of the incident that resulted in the loss, injury, or damage, or the shortest duration permitted under applicable law.17. Disputes with Canary Please read this carefully. It affects your rights. Most customer concerns can be resolved quickly by contacting us at support@canary.is. This section relates to disputes that may arise between you and Canary. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court, and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt out of this provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. Please read this provision carefully. All Disputes between you and Canary shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). For the purpose of this provision, “Canary” means Canary and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. “Dispute” means any dispute, claim, or controversy between you and Canary regarding any aspect of your relationship with Canary, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability, or scope of this provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Canary’s licensors, suppliers, dealers, or third-party vendors) whenever you also assert claims against us in the same proceeding. WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION. Pre-Arbitration Claim Resolution For all Disputes, you must first give Canary an opportunity to resolve the Dispute by mailing written notification of your dispute to Canary. That written notification must include (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If Canary does not resolve the Dispute within 60 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below. Exclusions from Arbitration/Right to Opt Out Notwithstanding the above, you or Canary may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, in which case it may be initiated in small claims court. or (b) YOU OPT OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS OF THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this provision by mailing written notification to Canary. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Canary through arbitration. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court. Arbitration Procedures The American Arbitration Association (“AAA”), www.adr.org, or JAMS will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this provision. For arbitration before the AAA for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply. for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules &amp. Procedures will apply. The JAMS rules are available at www.jamsadr.com. This provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Arbitration Award – The arbitrator may award relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties. Location of Arbitration – You or Canary may initiate arbitration in either New York City, New York or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Canary may transfer the arbitration to New York City, New York if it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator. Payment of Arbitration Fees and Costs – Canary will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Canary as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator. Class Action Waiver Except as otherwise provided in this provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, or private attorney general action) unless both you and Canary specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site or Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above. Jury Waiver You understand and agree that by entering into this Agreement you and Canary are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this provision, you and Canary might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived. Severability If any clause within this provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this provision, and the remainder of this provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire provision will be unenforceable and the Dispute will be decided by a court. Continuation This provision shall survive the termination of your service with Canary or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Canary makes any change to this provision (other than a change to the Notice Address), you may reject any such change and require Canary to adhere to the language in this provision if a dispute between us arises. Governing Law &amp. Venue The Federal Arbitration Act, Delaware state law, and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or the Services will be heard in the federal or state courts located in New York County, New York.18. Other TermsIf any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Canary’s failure to enforce any of these Terms is not a waiver of such terms. These Terms are the entire agreement between you and Canary with respect to the Services, and supersede all prior or contemporaneous negotiations, discussions, or agreements between you and Canary. California Consumer Notice Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.19. Changes to These TermsOur Services are constantly evolving to help us deliver exciting and useful improvements to you. Canary may make changes to, suspend, or discontinue the Services at any time. Canary is not liable to you or to any third party for any modification, suspension, or discontinuance of the Services. Canary may also change, update, add, or remove provisions of these Terms at any time by posting the updated Terms on Canary’s website, by providing notice through the Services, or by emailing you of any changes. By using the Services after Canary has updated the Terms, you are agreeing to all the updated Terms. if you do not agree with any of the updated Terms, you must immediately stop using the Services. These terms may not be modified or amended in any manner other than Canary posting to such modifications or amendments to a document available at https://canary.is/legal or any successor URL controlled by Canary, and any other purported modifications or amendments are void.20. Contact UsIf you have any questions about these Terms, you can contact us at legal@canary.is or by mail to: If you reside in the US or Canada: Canary Connect, Inc. Attn: General Counsel 26 Broadway Fl. 22 New York, NY, 10004 If you do not reside in the US or Canada: Canary Technology Europe, Limited Attn: General Counsel Digital Depot, Roe Lane Dublin 8, IrelandSchedule 1 Data Protection Addendum This Addendum or "DPA” forms part of the Terms. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Terms. Except as modified below, the Terms shall remain in full force and effect. To the extent there is any conflict between the provisions of the Addendum and the rest of the Terms, the provisions of the Addendum shall prevail. In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added as an Addendum to the Terms. Except where the context requires otherwise, references in this Addendum to the Terms are to the Terms as amended by, and including, this Addendum. <ol> <li>Definitions <ol> <li>“Special Categories of Personal Data” shall have the same meaning as in Article 9(1) of the GDPR;</li> <li>“Sub-processor” means any entity engaged by Canary or a Canary affiliate to process Video Feeds in connection with the Services;</li> <li>“Video Feeds” means the Personal Data comprised in the audio and video footage, images and meta data captured by our Services and processed on your behalf. and</li> <li>The terms “controller”, “data subject”, “Personal Data”, “Personal Data Breach”, “Processor” “processing” and “Supervisory Authority” shall have the same meaning as in Article 4 of the General Data Protection Regulation (“GDPR”) (together with any national transposing measures, secondary legislation (including European Commission decisions) adopted under the foregoing, “Applicable Data Protection Law”).</li> </ol> </li> <li> Applicability This Addendum only applies to you if you are habitually located within the EEA and you are subject to the obligations under the GDPR as a Controller of Video Feeds (in other words, other than where your use of the Services is “in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity”). This Addendum only applies in respect of Video Feeds. You agree that Canary is not responsible for Personal Data, including Video Feeds, that you have elected to process or share outside of the Services. </li> <li> Details of Data Processing <ol> <li> Subject Matter. The subject matter of the data processing under this Addendum is your Video Feeds.</li> <li> Duration. As between you and us, the duration of the data processing under this Addendum is determined by you.</li> <li> Purpose. The purpose of the data processing under this Addendum is the provision of the Services initiated by you from time to time.</li> <li> Nature of the Processing. The Services as described in the Terms and initiated by you from time to time.</li> <li> Type of Personal Data. Your Videos Feeds relating to you or other individuals whose Personal Data is included in such Video Feeds which is processed as part of the Services in accordance with instructions given through your account.</li> <li> Categories of Data Subjects. You and any other individuals whose Personal Data is included in Video Feeds.</li> </ol> </li> <li> Processing Roles and Activities. <ol> <li> Canary as Processor and You as Controller. You are the Controller and Canary is the Processor of your Video Feeds.</li> <li> Canary as Controller. Canary may also be an independent controller for some Personal Data relating to you or others. Please see our Privacy Policy and Terms for details about the Personal Data which we control.</li> <li> Description of Processing Activities. We will process your Video Feeds for the purpose of providing you with the Services, as may be used, configured or modified from within your account (the “Purpose”).</li> <li> Compliance with Laws. You will ensure that your instructions comply with all laws, regulations and rules applicable in relation to your Video Feeds and that your Video Feeds are collected lawfully and in accordance with such laws, rules and regulations. You will also ensure that the processing of your Video Feeds in accordance with your instructions will not cause or result in us or you breaching any laws, rules or regulations (including Applicable Data Protection Law). Canary will not access or use your Video Feeds except as provided in the Terms, as necessary to maintain or provide the Services or as necessary to comply with the law or binding order of a governmental, law enforcement or regulatory body.</li> </ol> </li> <li> Canary’s Obligations <ol> <li>Canary (as Processor) agrees with you (as Controller) that it shall: <ol> <li>only process Video Feeds on your behalf and in compliance with your documented instructions and the Terms unless Canary is required to do so by mandatory EU or EU Member State law to which Canary is subject. In such cases, Canary will inform you of that legal requirement before processing, where permitted to under that law;</li> <li>taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, in relation to Video Feeds implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk;</li> <li>take reasonable steps to ensure that Canary’s personnel, agents and contractors that process your Video Feeds are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;</li> <li>taking into account the nature of the processing, assist you by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of your obligations to respond to requests to exercise data subject’s rights under the GDPR;</li> <li>notify you without undue delay of becoming aware of a Personal Data Breach affecting your Video Feeds and taking into account the nature of processing and the information available to Canary, provide reasonable assistance to you to allow you to meet any obligations applicable to you in relation to such breaches under the GDPR;</li> <li>taking into account the nature of the processing and the information available to Canary, provide reasonable assistance to you in relation to any mandatory obligations applicable to you in relation to the performance of data protection impact assessments or the carrying out of consultations with a Supervisory Authority under the GDPR, in each case solely in relation to the processing of your Video Feeds;</li> <li>upon the expiration or termination of the Terms for any reason, at your election, return or delete all your Video Feeds in Canary’s possession and delete existing copies of your Video Feeds (unless Canary is required by mandatory EU or EU Member State law to retain the Personal Data);</li> <li>provide written responses and documentary information reasonably necessary to demonstrate compliance with Canary’s obligations under Clauses 5.1.1 - 5.1.7 above and, only to the extent required under Applicable Data Protection Law and where such compliance cannot be verified by providing you with evidence of Canary’s compliance, including without limitation evidence provided by an independent third party provider of compliance verification, allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you and agreed to by Canary that relate to your Video Feeds. For the avoidance of doubt, such audit shall be carried out no more than once in any 12-month period with reasonable notice, during regular business hours, in a manner which is not disruptive to Canary’s business and under a duty of confidentiality. The scope of such an audit will be agreed in advance and shall not involve physical access to the servers from which the Services are provided. You will bear the fees of any auditor and any expenses incurred by Canary in complying with this clause 5.1.8 and clauses 5.1.4 and 5.1.6. and</li> <li>promptly inform you if, in its opinion, an instruction infringes Applicable Data Protection Law.</li> </ol> </li> <li>You acknowledge and agree that (a) Canary’s affiliates, including Canary Connect, Inc., Smartfrog Services GmbH, and Smartfrog Limited, may be retained as Sub-processors. and (b) Canary and its affiliates may engage third party Sub-processors in connection with the provision of the Services. As a condition to permitting a third-party Sub-processor to process your Video Feeds, Canary or a Canary affiliate will enter into a written agreement with each Sub-processor containing data protection obligations that provide at least the same level of protection for Video Feeds as those in this Addendum, to the extent applicable to the nature of the services provided by such Sub-processor.</li> <li>A current list of Sub-processors, including the identities of those Sub-processors and their country of location, is available from Canary via a secured resource upon request. Canary shall update this secured resource with the details of new Sub-processor(s) before authorizing such new Sub-processor(s) to process Video Feeds in connection with the provision of the applicable Services. You agree to review the secured resource regularly in the context of such updates.</li> <li>You may reasonably object to Canary’s use of a new Sub-processor by notifying Canary promptly in writing within ten (10) business days after details of the new Sub-Processor have been added to the secured resource in accordance with clause 5.3. Such notice shall explain the reasonable grounds for the objection. Canary may recommend a commercially reasonable change to your configuration or use of the Services to avoid processing of your Video Feeds by the objected-to new Sub-processor without unreasonably burdening you. If Canary is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, either party may terminate without penalty the applicable subscription with respect only to those Services which cannot be provided by Canary without the use of the objected-to new Sub-processor by providing written notice to the other party.</li> <li>Canary shall be liable for the acts and omissions of its Sub-processors to the same extent Canary would be liable if performing the services of each Sub-processor directly under the terms of this Addendum.</li> <li>If and to the extent that Canary, as Processor of your Video Feeds, proposes to transfer such Video Feeds outside the European Economic Area, Canary will carry out such transfers in compliance with Applicable Data Protection Law.</li> <li>If Canary determines that it can no longer meet any of its obligations arising under clause 5.1 of this Addendum, it shall notify you without delay. In such a case, or if you have otherwise notified Canary of your determination that Canary cannot meet said obligations, Canary shall cease processing your Video Feeds and take other reasonable and appropriate remedial steps, including as directed by you.</li> </ol> </li> <li> Your Obligations and Instructions to Canary <ol> <li>You represent and warrant that: <ol> <li>all use of the Services by you, your employees, agents and any other persons with access to or use of the Services will be in compliance with Applicable Data Protection Law;</li> <li>you shall only process Special Categories of Personal Data using the Services in accordance with Article 9 of the GDPR, in reliance on explicit consent or to protect the vital interests of the data subjects or of another person where the data subject is physically or legally incapable of giving consent, and as otherwise permitted by Applicable Data Protection Law;</li> <li>to the extent that you rely on consent as a ground to process Personal Data or Special Categories of Personal Data under Applicable Data Protection Laws, you shall obtain the valid consent of data subjects in accordance with Applicable Data Protection Laws (including, in particular, in accordance with Articles 6(1)(a) and 9(2)(a) of the GDPR);</li> <li>you will display any notices, stickers or other signage inside and outside your property as required by Canary or Applicable Data Protection Law from time to time. and</li> <li>you will not, and will procure that your employees, agents and any other persons with access to or use of the Services do not, unlawfully upload or circulate Video Feeds generated by the Services.</li> </ol> </li> <li>You hereby instruct Canary to:</li> <ol> <li>process Video Feeds on its behalf so Canary can comply with its obligations under the Terms and provide the Services to you;</li> your Video Feeds as appropriate to designated third parties. the Video Feeds to Canary Connect, Inc. and it affiliates in order to provide the Services, and where necessary to enter into standard contractual clauses on your behalf to effect the lawful transfer of Video Feeds. and Video Feeds in accordance with Section 5.4 of the Terms. </ol> </ol> </li> <li> Liability and Indemnity <ol> <li>The liability of each party under this Addendum is subject to the exclusions and limitations of liability set out in the Terms. You agree that any regulatory penalties or claims by data subjects or others incurred by Canary in relation to your Video Feeds that arise as a result of, or in connection with, your failure to comply with your obligations under this Addendum or Applicable Data Protection Law shall reduce Canary’s maximum aggregate liability to you under the Terms in the same amount as the fine and/or liability incurred by us as a result.</li> <li>Where pursuant to Article 82(4) of the GDPR, either party is found to be liable for the entire damage arising from a breach or breaches of the GDPR relating to activities under the Terms, in order to ensure effective compensation of one or more individuals, then the other party shall indemnify that party for that portion of the compensation attributable to any breaches of GDPR giving rise to the compensation for which it is responsible.</li> </ol> </li> <li> Miscellaneous You are responsible for any costs and expenses arising from Canary’s compliance with your instructions or requests pursuant to the Terms (including this Addendum) which fall outside the standard functionality made available by Canary to its users generally through the Services. </li> </ol>