End User Agreement For BurnhamEYE™ Mobile Application
THE FOLLOWING ARE TERMS AND CONDITIONS PURSUANT TO WHICH BURNHAM NATIONWIDE, INC. (“Burnham”) OFFERS ITS BurnhamEYE™ MOBILE APPLICATION (“App”) TO YOU (“User” or “you”), AND YOUR USE OF THE APP CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS, AS AMENDED FROM TIME TO TIME, AND THE FORMATION OF A BINDING AGREEMENT BETWEEN YOU AND BURNHAM, ITS AFFILIATES, RELATED COMPANIES AND SUBSIDIARIES GOVERNING THE USE OF THE APP. Your downloads and use of the App indicate that you have read, agree with and accept these Terms and Conditions (sometimes referred to herein as the “Terms and Conditions” or “Agreement”) and these Terms and Conditions form a legally binding agreement between you and Burnham. If you do not agree to be bound by or accept these Terms and Conditions, you must uninstall the App and discontinue its use. The Terms and Condition incorporate any and all applicable terms and conditions of Apple, Inc. or Google, Inc.
Use of the Application
Burnham provides the App to standardize the collection of information so that the quality and compliance of construction/or/installation can be determined. You understand and agree that Burnham may cease to offer the App, either permanently or temporarily, in its sole discretion, without prior notice to you. In the event that Burnham ceases to offer the App, you may no longer have access to your account details or any files or other content associated with or provided by the App, including, without limitation, Uploaded Information as defined herein.
Subject to these Terms and Conditions, Burnham grants you a personal, non-transferable, non-exclusive, limited and revocable right to use the App on a device owned or controlled by the User. You may not reproduce, resell, transfer, modify, distribute, display, disassemble, decompile, reverse engineer, or create derivative works from the App or any text, data or pictures contained therein.
In order to use the App, you must create an account, supply all required Personal Information (as set forth below), and adhere to and comply with all fees structures, if any, contained herein. Usage of the App is available only to residents of the United States who are 18 years of age or older and capable of forming legally binding contracts under applicable law. Accounts are non-transferable and any attempt to transfer an account shall render that account void. Without waiver or limitation of any other right Burnham may have under these Terms and Conditions or any applicable state or federal law, Burnham reserves the right, at any time and without notice, to terminate, suspend or cancel any account and/or transaction for any reason or no reason. You may not use or access the App through any automated means or through any means other than the interface that is provided by Burnham. You are responsible for maintaining the confidentiality of any and all passwords associated with your account and you agree that you shall be responsible for all activities related to your account. You may not use the App in any way that is unlawful or detrimental to Burnham, or its affiliates, subsidiaries, related companies, suppliers, licensors or licensees.
Submission of Personal Information
During the course of your use of the App, Burnham may collect certain information, including but not limited to your location, the time of duration of your usage of the App, your identity, the identity of your device, as well as other information requested by the App. You hereby irrevocably consent to Burham’s collection, use, storage, dissemination and transfer of all such information collected, including but not limited to the dissemination and transfer of such information, both in independent and aggregate form, to third parties. For all materials, descriptions, photographs, data, and information that you provide in using the App, or that is collected by the App during the course of your usage (collectively “Uploaded Information”), you hereby grant to Burnham the irrevocable, perpetual, royalty-free and worldwide right to use, copy, distribute, collate, aggregate transfer, transmit, publicly display, reproduce, edit, modify, sell, resell, translate, and/or create derivative works or incorporate into other works the Uploaded Information and to sublicense all such rights to the maximum extent permitted by law. Burnham shall have no obligation and you will have no right of attribution to any Uploaded Information. You warrant and represent that all Uploaded Information you provide will be accurate and complete and shall not be modified or misrepresented in any way.
Amendment of Terms and Conditions
Burnham may amend this Agreement at any time. Except as otherwise expressly stated herein, this Agreement and all amended terms shall become effective automatically and immediately upon publication. You agree that all notices of any changes in these Terms and Conditions posted or sent to you via the most recent e-mail you provide, including but not limited to amendments to this Agreement, shall satisfy all legal requirements that communications be in writing and shall be deemed as received by you immediately upon being sent by us, without regard to any interruptions of service or other unavailability of e-mail. This Agreement may not be otherwise modified, revised or amended except in a writing signed by you and Burnham.
Disclaimer of Warranty
THE APP AND THE COLLECTION, COLLATION AND PROCESSING OF INFORMATION IS PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS AND THERE ARE NO EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF ANY KIND INCLUDING BUT NOT LIMITED TO WARRANTY AS TO NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, THAT ACCESS TO THE PROCESS WILL BE UNINTERRUPTED, ERROR OR DEFECT FREE OR COMPLETELY SECURE, OR WARRANTIES ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. BURNHAM DOES NOT MAKE ANY DECISION WITH REGARD TO THE ISSUANCE OF A PERMIT OR THE APPROVAL OF ANY WORK SUBJECT TO INSPECTION AND BURNHAM EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, THAT ANY PERMIT SHALL BE GRANTED OR THAT WORK PERFORMED WILL PASS ANY INSPECTION OF ANY DULY AUTHORIZED GOVERNMENTAL UNIT OR AGENCY. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
Limitation of Liability
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL BURNHAM, ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE APP, HOWEVER ARISING IN TORT, CONTRACT OR OTHERWISE, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YO DO NOT AGREE TO ANY PART OF THE LIMITATION OF LIABILITY OR YOU HAVE ANY DISPUTE WITH BURNHAM WITH REGARD TO THE USE OF THE APP, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE APP. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
You hereby agree to release, indemnify, defend (including payment of attorneys’ fees and costs) and hold harmless Burnham, its affiliates, parent companies, subsidiaries, officers, directors, agents and employees from any and all suits, claims, demands and damages (special, incidental, actual, punitive and consequential), including attorneys’ fees, of every kind and nature, known and unknown, disclosed and undisclosed, whether arising from tort, contract or in any way arising from or relating to any claim due to or arising out your use of the App or the reliance upon the App for the purpose of obtaining a permit or approval of any work performed for inspection, or your alleged or actual violation of any law or the alleged or actual violation of the rights of a third party.
No Joint Venture or Agency Relationship
No part of this Agreement or your use of the App and/or any associated website shall be construed to create a joint venture, agency, employment, partnership or franchise relationship between you and Burnham.
Applicable Law & Venue
This Agreement, your use of the BurnhamEYE™ and/or any associated website, and any and all claims and disputes arising from or relating thereto, whether in law or equity (“Claims”), shall be governed by the laws of the State of Illinois without application of its conflict of laws provisions. You further agree that all Claims shall be adjudicated exclusively in the state or federal courts located in Cook County, Illinois and you hereby submit to the personal jurisdiction of such courts.
This Agreement, including any and all policies and supplements incorporated herein, constitutes the entire agreement between you and Burnham relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.
No term or provision hereof will be considered waived and no breach excused by Burnham, unless such waiver or consent is in writing signed by a duly authorized agent of Burnham. No consent or waiver of a breach shall constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach.
The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole.
If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions shall be amended to achieve as closely as possible the effect of the original term and all other provision shall continue in full force and effect.
All original content of the App, including text, graphics, database compilations, and software are the property of Burnham or provided to Burnham under license from the content supplier, and protected by United States and international law. One or more patents may apply to the App and rights therein are reserved.