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DISTECH CONTROLS API LICENSE AGREEMENT

Effective May 24th 2016, 3:03 PM EDT  to  Present

 
YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS BEFORE UTILIZING THE SOFTWARE

This is a software license and not a sale of software. The software is licensed to You subject to the following terms and conditions, which define what You can and cannot do with the software, and provide conditions and limitations on warranties and remedies.
You are being provided with this document because You or someone on Your behalf desires to use certain software, apps, or other computer code (the “Distech Controls API” as further defined below) provided by Distech Controls, Inc. (“Distech Controls”). By clicking “I Agree”, installing the Distech Controls API, or utilizing the Distech Controls API, You acknowledge Your agreement to comply with the terms and conditions of this License Agreement (“Agreement”). If You do not agree to the terms and conditions of this Agreement, then do not click “I Agree”, download/install the Distech Controls API, or utilize the Distech Controls API, and do uninstall/delete the Distech Controls API if it has already been downloaded/installed, and do notify Distech Controls in writing as soon as reasonably possible of Your rejection of the Agreement at eclypseapi@distech-controls.com. Distech Controls has no obligation to You, including no obligation to allow you to utilize the Distech Controls API or Documentation, until Distech Controls has notified you that it has agreed to provide you with the license set forth herein; your submission of the Signup Form (as defined below) is an offer to contract only and Distech Controls has no obligation to accept such offer.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, ALL REFERENCES TO “YOU” OR “YOUR” IN THIS AGREEMENT SHALL MEAN COLLECTIVELY THE ORGANIZATION AND THE USER OF THE DISTECH CONTROLS API. IN SUCH INSTANCE, BY CLICKING “I AGREE”, INSTALLING THE SOFTWARE CONTAINED IN THE DISTECH CONTROLS API, OR UTILIZING THE DISTECH CONTROLS API, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, AND THAT THE ORGANIZATION AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.

1. Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth below:
1.1. “Authorized Users” means, and shall be limited to Your employees who require access to the Distech Controls API for You to carry out the Purpose.
1.2. “Derivative Work” means all works, inventions and other subject matter incorporating intellectual property of another party, including all customizations, enhancements, improvements and other modifications thereof.
1.3 “Distech Controls API” means the application programming interface (a set of computer routines, protocols, and messaging formats) used by the integrated software in the Distech Controls Appliance to interact with external software. The details of the Distech Controls API shall be set forth on the Signup Form and shall include all sample code and Documentation identified therein.
1.4 “Distech Controls Appliance” means the separate and discrete hardware device with integrated software (commonly referred to as firmware) provided by Distech Controls to customers to provide specific computing functionality.
1.5. “Documentation” means any published user manuals that Distech Controls makes generally available for use with the Distech Controls API or Distech Controls Appliance.
1.6. “Purpose” means the limited purpose for which You may use the Distech Controls API and Distech Controls Appliance under this Agreement, as set forth in the Signup Form.
1.7.“Relationship Agreement” means a separately executed agreement between Distech Controls and You which (a.) is valid and enforceable as of the Effective Date of this Agreement, and (b.) establishes You as a reseller or integration partner for Distech Controls’ products and services.
1.8. “Signup Form” means the form where You requested a license for the Distech Controls API that refers to these Terms and Conditions and contains the details regarding the You and this license, including without limitation, specifics regarding the Distech Controls API, the Distech Controls Appliance, the Purpose, and the Term. Your submission of the Signup Form does not obligate Distech Controls in any way; Distech Controls shall have no obligation to you unless and until Distech Controls notifies you that it has accepted your Signup Form and is granting you the license under this Agreement.
1.9. “Suppliers” means all third party licensors and other suppliers that provide any portion of the Distech Controls API, Distech Controls Appliance, or Documentation.
1.10. “Term” means the term for which Distech Controls will license to You the right to use of the Distech Controls Appliance API and Distech Controls Appliance, as further set forth in Section 8.1.
1.11. “Your Technology” means software, products, or services that You wishes to have interact with the Distech Controls Appliance via the Distech Controls API, including customizations, enhancements, improvements and other modifications of the Your Technology, but excluding the Distech Controls API and Documentation and all Derivative Works thereof. In order to be considered Your Technology, the Your Technology must offer additional functionality that does not exist within the Distech Controls Appliance.
2. Use.
2.1. Limited on Scope. The Parties are entering into this Agreement for limited purpose of Distech Controls providing You during the Term with the basic tools necessary for You to develop or modify the Your Technology to interact with the Distech Controls Appliance via the Distech Controls API. It does not provide You with the right to possess or use the Distech Controls Appliance itself, except as provided in Section 4, or allow third parties to possess, access, or use a Distech Controls Appliance under any circumstances. By entering into this Agreement You agrees and acknowledges that at no time shall it allow any third party to use the Your Technology to access the Distech Controls Appliance absent Distech Controls’ separate prior written approval. Nothing herein grants either Party the right to bind the other. Distech Controls shall have no obligation to provide support for the Distech Controls API or Distech Controls Appliance under this Agreement. You shall be responsible for responding to any questions from its Authorized Users. The Distech Controls API shall be available on an “As Is, As Available” basis. Distech Controls shall not be obligated to provide access to any other programs, workflows, process managers, or functionality not explicitly identified on the Signup Form. Such other programs, process managers, or functionality may be available to You at Distech Controls’ then-current rates pursuant to a separate, mutually executed agreement
2.2. Test Results and Feedback. You agree that Distech Controls shall have the right to use, without attribution or compensation to You, any feedback that You provide to Distech Controls to improve, enhance, or modify the Distech Controls API, Distech Controls Appliance, or Documentation. To the extent that the Purpose authorizes You to evaluate or test the Distech Controls API or Distech Controls Appliance, You agrees that such tests are for Your use only and You shall not share the results with any third party without Distech Controls’ prior written consent.
3. Distech Controls API.
3.1. License. Pursuant to this Agreement, Distech Controls shall make available to You the Distech Controls API. Distech Controls hereby grants to You during the Term a non-exclusive, non-sublicensable, non-transferable, revocable, limited worldwide license, under Distech Controls’ copyrights embodied in the Distech Controls API solely to have Authorized Users utilize the Distech Controls API to develop or modify You Technologies to be capable of communicating with the Distech Controls Appliance, in all cases solely for the Purpose.
3.2. Requirements. You shall not take any action or enter any agreement that would result in any contractual requirement that Distech Controls or You make available to a third party the Distech Controls API or the software contained in the Distech Controls Appliance, including by virtue of Your use of or distribution of any software subject to a “copyleft” license.
3.3. Ownership of Your Technology. As between Distech Controls and You, You shall be the sole owner of any Your Technology except to the extent that such Your Technology is a Derivative Work of the Distech Controls API. For the sake of clarity, modifications or changes to the Your Technology to enable it to communicate with the Distech Controls Appliance via the Distech Controls API shall not be considered a Derivative Work of the Distech Controls API, shall be considered Your Technology, and shall be owned by You.
4. Distech Controls Appliance.
4.1. Use for Validation. You may utilize a Distech Controls Appliance in its possession to validate the ability of the Your Technology to communicate with the Distech Controls Appliance. Under this Agreement Distech Controls shall have no obligation to provide or support the Distech Controls Appliance. You’ shall be limited to use of any software functionality via the Distech Controls Appliance; You shall have no right to access the software code contained within the Distech Controls Appliance. You agrees that any other use of the Distech Controls Appliance would require additional consideration and the prior written approval of Distech Controls.
5. Authorized Users.
5.1. You shall implement reasonable controls to ensure that the Distech Controls API and Distech Controls Appliance are accessed and used only by Authorized Users. You shall be responsible for any and all actions of such Authorized Users.
6. Reservation of Rights.
6.1. Ownership. You acknowledges and agrees that, as between You and Distech Controls, all worldwide right, title and interest in and to the Distech Controls API, Distech Controls Appliance, Documentation and related materials (including all modifications, alterations and enhancements thereto and derivative works thereof) and all copies thereof, including all intellectual property rights, are and shall remain the exclusive property of Distech Controls and its Suppliers. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Distech Controls API, Distech Controls Appliance, and Documentation are licensed, not sold. Except for the rights expressly granted in Sections 3.1 and 4.1, You shall have no rights in the Distech Controls API, Distech Controls Appliance, or Documentation. Distech Controls reserves all rights not explicitly granted to You under this Agreement. Notwithstanding anything herein to the contrary, Distech Controls retains the right to update and modify the Distech Controls API, Distech Controls Appliance, and Documentation as it sees fit and at any time.
6.2. Restrictions. You agrees that it will not, nor permit or authorize any third party to: (a) copy, modify, adapt, make Derivative Works of, distribute or sublicense the Distech Controls API, Distech Controls Appliance, or Documentation except as provided in Section 3, (b) disassemble, decompile, reverse engineer, or make any other attempt by any means to discover or obtain the source code for the Distech Controls API or the software used to provide the Distech Controls Appliance, except as such source code is provided as part of the Distech Controls API or as may be expressly permitted under applicable law, or (c) remove any copyright or other proprietary notices from the Distech Controls API, the Distech Controls Appliance, or the Documentation.
7. Data and Security.
7.1. Data Collection. To the extent that You may use the Distech Controls API to provide data to Distech Controls, either directly or indirectly, You agrees that You is solely responsible for obtaining (or ensuring that a third party obtains) all required consents to provide such data to Distech Controls, which consents will be compliant with all applicable data protection legislation and other privacy laws, rules, and regulations. Without limiting the forgoing, before providing any information about any individual to Distech Controls, You shall provide such individual with adequate notice of what information it collects and how it will be used and/or shared and obtain any necessary consents regarding the collection, use or sharing of such data. Under this Agreement Distech Controls makes no representations or guarantees regarding the maintenance or security of data provided to it by You.
8. Term and Termination.
8.1. Term. This Agreement shall commence on the Effective Date and shall remain in effect until (a) the termination or expiration of the Relationship Agreement, at which point this Agreement shall automatically terminate, or (b.) if no Relationship Agreement is identified on the Signup Form, three (3) months from the Effective Date. In the case of (b.) herein, the Term shall automatically renew for up to four (4) successive three (3) month periods, unless either Party shall have notified the other Party that it elects not to renew prior to the expiration of the then-current Term.
8.2. Termination. During the Term a Party may terminate this Agreement for cause provided (a.) in the case of a curable breach, the breaching Party has failed to cure such breach within thirty (30) days following receipt of written notice of the breach, and (b.) in the case of incurable breach (e.g., violations of intellectual property rights of a Party, improper use or disclosure of a Party’s confidential information, or unlawful activity) upon written notice by the non-breaching Party.
8.3. Effect of Termination. Upon termination of the Term, all rights granted to You hereunder with respect to the Distech Controls API, Distech Controls Appliance, and Documentation shall cease, and You shall immediately cease all use thereof and promptly return or destroy all copies thereof in Your possession. Notwithstanding anything to the contrary contained herein, any provisions which, by their nature, are intended to survive any expiration or termination of this Agreement shall so survive, including Sections 123.3, and 6 - 16.
9. Fees and Payment. Fees due under this Agreement, if any, shall be set forth on the Signup Form and You shall pay such fees within a commercially reasonable period after Distech Controls’ notification of acceptance thereof, but in all cases no later than before your use of the Distech Controls API. Fees for subsequent renewal Terms, if any, shall be payable in advance not later than the applicable renewal date.
10. Warranty and Disclaimers.
10.1. You Warranties. You represents and warrants that it shall be solely responsible for (a) any warranties it makes to Authorized Users or users of the Your Technology and shall not represent or suggest otherwise, (b) compliance with all laws applicable to it and its use of the Distech Controls Appliance and Distech Controls API, and (c) ensuring that the Distech Controls Appliance, Distech Controls API, and Documentation will not be exported or used, nor will the data gained therefrom be exported to, transshipped or re-exported, in violation of any applicable export laws
10.2. Disclaimer. DISTECH CONTROLS, ITS AFFILIATES AND SUPPLIERS (COLLECTIVELY, “DISTECH CONTROLS PARTIES”) MAKE NO WARRANTIES WHATSOEVER AND PROVIDE THE DISTECH CONTROLS API, DISTECH CONTROLS APPLIANCE, AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE DISTECH CONTROLS PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, COURSE OF DEALING, COURSE OF PERFORMANCE, AVAILABILITY, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND YOU EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE DISTECH CONTROLS API AND DISTECH CONTROLS APPLIANCE IS AT YOUR RISK. DISTECH CONTROLS DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES.
11. Limitation of Liability.
11.1. No Remote Damages. IN NO EVENT SHALL THE DISTECH CONTROLS PARTIES OR YOU BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF DATA, GOODWILL, BUSINESS INTERRUPTION OR THE LIKE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This Section shall not apply to claims or damages related to Your violations of its obligations to Distech Controls with respect to intellectual property rights, confidential information, or indemnification.
11.2. Cap and Time Limit. THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF THE DISTECH CONTROLS PARTIES FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, SHALL BE THE GREATER OF THE SUM OF THE FEES RECEIVED BY DISTECH CONTROLS OVER THE TWELVE (12) MONTH PERIOD LEADING UP TO THE DATE THE CAUSE OF ACTION ACCRUED OR ONE HUNDRED DOLLARS ($100). NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE DATE THE CAUSE OF ACTION HAS ACCRUED.
12. Proprietary Rights
12.1. Incorporation of Nondisclosure Agreement. On the date identified on the Signup Form as the Date of the NDA You and Distech Controls entered into a nondisclosure agreement to protect proprietary information and agree that this Agreement and all information, services, and materials provided hereunder as well as the terms of the Agreement itself shall be governed by that nondisclosure agreement. In the event that the term of the nondisclosure agreement would expire prior to the expiration of the Term, Distech Controls and You agree that the nondisclosure agreement shall automatically extend in full force and effect through the end of the Term. Neither Party may use the name of the other Party in any news release, public announcement, advertisement or other form of publicity without the prior written consent of the other Party. Notwithstanding the forgoing, Distech Controls shall have the right to make a general public announcement about this Agreement so long as Distech Controls does not disclose the terms of this Agreement, the name of the You or any confidential information of You.
13. Indemnification.
13.1. You agree to indemnify, defend, and hold harmless Distech Controls and its respective officers, directors, employees, agents, successors, representatives and assigns from any suits, losses, claims, demands, liabilities, costs and expenses (including attorney or accounting fees) sustained, incurred, or arising from (a) Your use or misuse of the Distech Controls Appliance or Distech Controls API, (b) any claim related to the Your Technology, or (c) Your violation of Section 7.
14. Miscellaneous.
14.1. U.S. Government Restricted Rights. The Distech Controls API, the software incorporated into the Distech Controls Appliance, and the Documentation are “commercial items” as that term is defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software Documentation” as such terms are used in 48 CFR 12.212. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1, 227.7202-3 and 227.7202-4, all U.S. Government end users acquire the Distech Controls API, the software incorporated into the Distech Controls Appliance, and the Documentation with only those restricted or limited rights customarily provided to the public (i.e., as set forth herein).
14.2. Assignment. You may not assign this Agreement or any rights or obligations hereunder and this Agreement shall be binding upon, and inure to the benefit of all successors and assigns.
14.3. Notices. All notices or approvals hereunder shall be in writing and sent by certified or registered mail, postage prepaid, return receipt requested (or similarly evidenced overnight delivery), and shall be deemed to have been given upon receipt. In all cases such notices shall be provided to the address set forth on the Signup Form, provided that for Distech Controls they shall be addressed to the attention of the Senior Vice President, Distech Controls Appliance Architecture, with a copy to its General Counsel. Either Party may change its address for such communications by giving notice thereof.
14.4. Governing Law, Venue. This Agreement shall be governed in accordance with and interpreted under the laws of the State of Georgia without giving effect to its choice of law provisions. Any action hereunder shall be brought in a State or Superior court or the United States District Court of competent jurisdiction in Fulton County, Georgia. Both Parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to jurisdiction or venue in any such proceeding. Neither the provisions of the U.C.C. nor U.C.I.T.A. shall apply. It is understood and agreed that, notwithstanding any other provision of this Agreement, any breach of this Agreement by You will cause irreparable damage for which recovery of money damages would be inadequate, and that Distech Controls will therefore be entitled to seek injunctive or other equitable relief to protect its rights under this Agreement in addition to any and all other remedies. The prevailing Party in any arbitration proceeding or litigation hereunder shall be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and the costs incurred in connection with arbitration or litigation under this Agreement.
14.5. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties. This Agreement shall supersede all prior or contemporaneous understandings, agreements, representations, or other communications between the Parties, oral or written, regarding its subject matter, including the terms of any license agreement included in access pages associated with the Distech Controls API or the Distech Controls Appliance. A court of competent jurisdiction that finds any part of this Agreement to be unenforceable shall attempt to craft an acceptable replacement provision that most closely matches the intent of the Parties, or, if unwilling or unable to do so, strike the offending provision without invalidating the rest of this Agreement. This Agreement may be executed in counterparts all of which when taken together will constitute one single agreement between the Parties. This Agreement may be amended only in a written document signed by authorized representatives of both Parties.
14.6. Electronic Execution. You hereby agrees to transact business with Distech Controls electronically.
14.7. Execution Warranties. You represents and warrants that You has the authority to accept this Agreement, will abide by and comply with this Agreement, are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and are not listed on any U.S. Government list of prohibited or restricted parties.
14.8. Order of Precedence. If another written agreement signed by Distech Controls and You both governs the Distech Controls API and expressly and unambiguously states that this Agreement, by specific reference, is subservient to that agreement, then that agreement shall control solely to the extent that there exists a direct conflict between the terms therein and this Agreement. Otherwise, this Agreement shall control. If Distech Controls agrees to also license an ancillary piece of software for use in conjunction with the Distech Controls API pursuant to an Application End User License Agreement for Use with a Distech Controls Platform (an “Application Agreement”), then this Agreement shall be considered the Distech Controls Platform Agreement, as that term is defined in the Application Agreement.
14.9. Merger. This Agreement comprises the entire agreement between You and Distech Controls with respect to the Distech Controls API, Documentation, and related services (“Agreement”), and supersedes any other agreement or discussion, oral or written, with respect to the Distech Controls API, Documentation, and related services. If another written agreement signed by Distech Controls and You both governs the Distech Controls API and expressly and unambiguously states that this Agreement, by specific reference, is subservient to that agreement, then that agreement and this Agreement, interpreted together in accordance with Section 1, shall constitute the Agreement.
15. Electronic Execution. If You are presented with an electronic version of this Agreement, by clicking “I Agree” You agree to transact business with Distech Controls electronically.
16. Execution Warranties. You represent and warrant that You have the authority to accept this Agreement on behalf of Yourself and any organization You represent, that You are more than 18 years of age, will abide by and comply with this Agreement, are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and are not listed on any U.S. Government list of prohibited or restricted parties.