This End User License Agreement (the "Agreement") is a binding agreement between Lochinvar, LLC ("Licensor"), having offices at 300 Maddox Simpson Parkway, Lebanon, Tennessee 37090, and the Person downloading or using the Software ("Licensee"). The Licensor and Licensee are referred to herein collectively as the "Parties" and individually as a "Party."
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "I ACCEPT/AGREE" BUTTON (A) LICENSEE ACCEPTS THIS AGREEMENT AND AGREES TO BE LEGALLY BOUND BY ITS TERMS AND (B) LICENSEE REPRESENTS AND WARRANTS TO BE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND, IF LICENSEE IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, LICNESEE HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LEGAL ENTITY AND BIND THE LEGAL ENTITY TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND LICENSEE MUST NOT DOWNLOAD OR USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE OR DOCUMENTATION THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE OR DOCUMENTATION.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Affiliate" means any Person that a Party controls, or is controlled by, or is under common control with.
"Authorized Users" means Licensee and persons performing services at the request of Licensee.
"Documentation" means user manuals, technical manuals, data, and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.
"Licensee" has the meaning set forth in the preamble.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Licensor" has the meaning set forth in the preamble.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
"Software" means the service that allows Licensee and Authorized Users to remotely retrieve data from a cloud service and a platform, known as ConXus, that allows the Licensee and Authorized Users to view and manage Licensee's use of the cloud service and manage devices. The meaning of Software also includes any new features added to or augmenting the Software during the Term of this Agreement.
"Term" has the meaning set forth in Section 7.
"Third Party" means any Person other than Licensee or Licensor.
"Update" means maintenance and support services such as upgrades, bug fixes, patches, and other error corrections.
2. License Grant and Scope. Subject to and conditioned upon Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use (directly and through its Authorized Users) the Software and Documentation solely as set forth in this Section 2 and subject to all conditions and limitations set forth in this Agreement. This license grants Licensee (and its Authorized Users) the right to:
(a) Install in accordance with the Documentation copies of the Software on computers owned, leased, or controlled by Licensee.
(b) Use and run the Software (as properly installed in accordance with this Agreement and the Documentation) solely as set forth in the Documentation.
(c) Download or otherwise make copies of the Documentation and use such Documentation, solely in support of licensed use of the Software in accordance with this Agreement. All copies of the Documentation made by Licensee:
(i) will be the exclusive property of Licensor;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
3. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(d) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; or
(e) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof.
4. Licensee Responsibilities.
(a) Licensee is responsible and liable for all uses of the Software and Documentation. For example and without limiting the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person that uses the Software and/or Documentation on behalf of Licensee or an Authorized user regardless of whether such access or use is permitted by or in violation of this Agreement and regardless of whether such access or use is with the knowledge and consent of Licensee or an Authorized User.
(b) Licensee shall promptly communicate to Licensor any bugs or errors in the Software and Documentation discovered by Licensee or any Authorized User, and Licensee may communicate to Licensor suggestions for improvements to the Software and Documentation (collectively "Feedback"). Licensor shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. Licensor shall not be required to use any Feedback, including fixing any bugs or errors and will in its sole discretion determine the manner and schedule for any bug or error fixes.
(c) Licensee is solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Software and Documentation, including, without limitation, computers, modems, hardware, servers, software, operating systems, and networks.
5. Collection and Use of Information.
(a) Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used.
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee's equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates; and
(ii) verifying Licensee's compliance with the terms of this Agreement and enforcing the Licensor's rights, including all Intellectual Property Rights in and to the Software.
(c) Licensee agrees that Licensor may use such information obtained during the Term indefinitely after the Term has ended.
(d) Licensor will not sell any data obtained from Licensee or Authorized Users to a Third Party except (1) with the permission of Licensee or (2) in an anonymized form.
6. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license and are not sold to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement or any other rights thereto other than to use the same in accordance with the license granted subject to all terms, conditions and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
7. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the "Term").
(b) The Term begins upon acceptance of this Agreement by Licensee and automatically ends 12 years from the Effective Date. The Software and Documentation is provided at no charge to Licensee during the Term.
(c) Either Party may terminate this Agreement at any time upon thirty (30) days' written notice to the other Party.
(d) Licensor may terminate this Agreement immediately and without notice to Licensee in the case of breach of Sections 2 or 3 by Licensee.
(e) Upon termination of this Agreement, all rights granted to Licensee hereunder shall also terminate, and Licensee shall cease using and destroy or return all copies of the Software and Documentation.
8. Warranty Disclaimer.
(a) THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES' COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). IF LICENSEE IS DISSATISFIED WITH THE SOFTWARE OR THE DOCUMENTATION, LICENSEE'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
10. Indemnification. Licensee shall indemnify, defend and hold harmless Licensor and its Affiliates and associated officers, directors, employees, agents, successors and assigns against all losses arising out of or resulting from any claim, suit, action or proceeding (including Third Party claims, suits, actions or proceedings) related to or arising out of or resulting from (a) Licensee's use of the Software and Documentation, (b) Licensee's breach of this Agreement, or (c) any action of Licensor related to this Agreement, including without limitation, investigation or corrective actions taken by Licensor relating to suspected breach of this Agreement.
11. Export Regulation. The Software and Documentation may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the U.S.
12. U.S. Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the U.S. Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
(a) Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Tennessee.
(b) Independent Contractors. The Parties are and shall be independent contractors and neither Party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.
(c) Amendment. Licensor shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to Licensee. Licensee's access of or sue of the Software or Documentation after the date such amended terms are delivered to Licensee shall constitute acceptance of such amended terms.
(d) Enforceability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(e) Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion.
(f) Supersession. This Agreement constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.