This is a legal agreement (“Agreement”) between you and RADIX IOT, LLC, Inc., a Texas corporation (“Radix IoT LLC”). If you use the Radix IoT products and services as an employee of or for the benefit of your company, you represent that you have the power and authority to accept this agreement on behalf of your company. In such event, “you” refers to your company. YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE ANY LICENSED PRODUCT CAN BE DOWNLOADED OR INSTALLED OR USED. BY CLICKING ON THE “ACCEPT” BUTTON OF THIS AGREEMENT, OR BY DOWNLOADING, INSTALLING OR USING A LICENSED PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU SHOULD EXIT THIS PAGE AND NOT DOWNLOAD OR INSTALL OR USE ANY LICENSED PRODUCT. BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO DOWNLOAD OR INSTALL OR USE A LICENSED PRODUCT AND YOU MAY RETURN IT TO THE PLACE YOU OBTAINED IT FOR A FULL REFUND (IF APPLICABLE).
1. Products and Services
1.1. This agreement applies to Licensed Product(s), which means the BacNet4J software product(s) that Licensee has acquired.
1.2. Additional terms and conditions (beyond those stated here and in any attached supplements) may apply to certain Licensed Products. When ordering these Licensed Products, you will be given an opportunity to review the additional terms and conditions that must be accepted for you to receive the Licensed Products. If the additional terms and conditions conflict in any way with the terms and conditions stated here, the additional terms and conditions will prevail.
2. Licenses
2.1. Your License Rights: When you purchase a license to a Licensed Product, upon its delivery you will have a nonexclusive right to:
Integrate the licensed software into your own software;
Distribute an unlimited number of copies of your own software with the licensed software as part of it;
Make proprietary modifications to the licensed software;
2.2. Conditions: Your right to use the Licensed Product is conditioned upon your timely payment of the full amount of Fees due for the Licensed Product and your compliance with the terms of this agreement, including the following restrictions.
2.3. Restrictions: You may not (and may not allow anyone else to):
copy or use any Licensed Product (or Documentation) in any manner that is not expressly allowed by the license rights stated above;
disclose the results of any benchmarking of a Licensed Product (whether or not the results were obtained with assistance from Radix IoT) to any third party; or
use a Licensed Product in the development of any product if the failure or malfunction of that product could reasonably be expected to result in personal injury, death, or catastrophic loss.
Copyrights to the Licensed Product are held by the copyright holders indicated in the copyright notices in the corresponding source files.
2.4. Transfers and Assignments: You may not transfer or assign your license rights to any other person in any manner (by assignment, operation of law or otherwise) unless you have obtained written consent from Radix IoT. If you attempt to transfer or assign any of your license rights without Radix IoT’s consent, the transfer or assignment will be ineffective, null, and void (and you will be in material breach of this agreement).
3. Confidentiality
3.1. Confidentiality Obligations: Each party (you and Radix IoT) agrees to abide by the following confidentiality obligations with respect to the other party’s Confidential Information:
do not disclose it to any third party unless (a) the other party has given its specific and express prior written approval, (b) the disclosure is expressly allowed under this agreement, or (c) the disclosure is necessary to comply with a valid court order or subpoena;
do not use it for any reason other than to exercise its rights and perform its obligation under this agreement; and
protect it from unauthorized dissemination in the same manner as that party protects its own Confidential Information, and in any event with reasonable precautions (which include limiting access to employees and contractors on a “need to know” basis).
3.2. Mandatory Disclosures: If you believe you must disclose Radix IoT’s Confidential Information in order to comply with a valid court order or subpoena, you must promptly notify Radix IoT and cooperate with Radix IoT if Radix IoT chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed. Radix IoT will do the same if it believes it must disclose your Confidential Information in these circumstances.
3.3. Additional Obligations: In addition to your general obligations of confidentiality regarding the Licensed Products and Documentation, you must take the following steps to help prevent any unauthorized access to or use of the same:
you must ensure that each End User who is your independent contractor (not your employee) has access to and uses the Licensed Products and Documentation only while working on your physical premises; and
you must monitor each End User’s use of the Licensed Products to ensure that the End User abides by the terms of this agreement.
4. Term and Termination
This License is effective until terminated. You may terminate this License at any time by destroying all copies of Software including any documentation. This License will terminate immediately without notice from Radix IoT if you fail to comply with any provision of this License. Upon termination, you must destroy all copies of Software.
5. Limited Warranty
5.1. Warranty: The Licensed Product is provided “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, AND RADIX IOT FURTHER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER RADIX IOT NOR THE LICENSORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE ECLIPSE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2. Disclaimer: This is the only warranty Radix IoT provides for the Licensed Products. Except for this warranty, all Licensed Products and Documentation are provided “AS IS”. Radix IoT disclaims all other warranties (express, implied, or statutory), including any warranties of merchantability, fitness for a particular purpose, title, or non-infringement and any warranties arising from a course of dealing or usage of trade.
6. Other Terms
6.1. Ownership of IP Rights: Radix IoT and its licensors own all Intellectual Property Rights in the Licensed Products, Documentation, and Design Techniques. Your only rights in the Licensed Products, Documentation, and Design Techniques are the rights expressly granted in this Agreement; all other rights are reserved by Radix IoT. Radix IoT’s licensors are third-party beneficiaries of, and thus may enforce against you, the license restrictions and confidentiality obligations in this agreement with respect to their intellectual property and proprietary information. You will own all Intellectual Property Rights in the Designs you create using the Licensed Products, Documentation, and Design Techniques, subject to Radix IoT’s (and its licensors’) ownership of the Intellectual Property Rights in the Licensed Products, and Documentation. Radix IoT may freely use and disseminate any Feedback you provide. You agree not to claim that Radix IoT owes you any compensation for its use or dissemination of such Feedback.
6.2. Limitation of Liability: For each product you license or purchase from Radix IoT under this agreement, Radix IoT’s total, cumulative liability to you is limited to the amount of Fees you paid for that product (regardless of the nature of the liability or the nature or number of claims giving rise to the liability). Radix IoT will not, under any circumstances or any theory of liability, be liable to you for any lost profits, loss of data, or consequential, incidental, or special damages arising from this agreement or the products and services provided to you under this agreement. The limitations of liability in this section are a fundamental part of this agreement and enable Radix IoT to provide products to you at lower prices. These limitations of liability are intended to apply even if an exclusive remedy is found to have failed of its essential purpose.
6.3. Export Controls: Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software.
6.4. Governing Law; Jurisdiction: This agreement is governed by the laws of the United States and the State of Texas, without regard to conflicts of laws principles. The federal and state courts located in Dallas County, Texas have exclusive jurisdiction over any disputes arising from or relating to this agreement, and each party consents to such jurisdiction and venue.
6.5. Notices: Any notice, approval, consent, or other communication intended to have legal effect under this agreement must be given to the other party in writing, must be sent by first-class, registered, or overnight mail or private overnight courier (to the address for the other party stated on the signature page, unless the other party has given notice of a new address), and will be deemed given upon receipt or when delivery is refused.
6.6. Waivers: Either party’s failure to enforce any provision of this agreement will not be deemed a waiver of the future enforcement of that provision or enforcement of any other provision. In order to be binding, a waiver must be in writing and signed by the party giving the waiver.
6.7. Independent Contractors: The parties to this agreement are independent contractors. Neither party is the agent or partner of the other party, or has any power or authority to act on behalf of the other party.
6.8. Severability: If any provision in this agreement is found to be invalid or unenforceable as written, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision is to be construed (and, if necessary, modified) so that it is valid and enforceable to the greatest extent possible.
6.9. Attorneys’ Fees: The prevailing party in any action to enforce this agreement will be entitled to recover costs and expenses including reasonable attorneys’ fees.
6.10. Remedies: Except where this agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative. You agree that monetary damages alone would not be an adequate remedy, and therefore Radix IoT will be entitled to injunctive relief if you materially breach the license restrictions or confidentiality provisions in this agreement.
6.11. Force Majeure: Each party will be excused from performance of its obligations under this agreement, except payment obligations, to the extent that performance is rendered impossible by earthquake, fire, flood, governmental action, labor disruptions, supplier failures, or any other event or circumstance beyond that party’s reasonable control.
6.12. Construction: Section headings in this agreement are for convenience only. The word “including” (and variations thereof) is not intended to be limiting. No rule of strict construction is to be used when interpreting this agreement.
6.13. Government Users: If you are a branch or agency of the United States Government, or are acquiring any Licensed Product on behalf of any branch or agency of the United States Government, then the following provision applies. The Licensed Products and Documentation are comprised of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212, and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
6.14. Entire Agreement: This agreement and any applicable attachments and Purchasing Agreements are the entire agreement between the parties concerning its subject matter, and supersede any prior or contemporaneous agreements, communications, or understandings (whether written or oral). However, any confidentiality or nondisclosure agreements that Radix IoT previously entered into with you will remain in effect (according to their terms) with respect to the confidential information disclosed thereunder.
6.15. Amendments: This agreement may be amended only by means of a written instrument signed by authorized representatives of both parties that specifically refers to this agreement and states the parties’ intention to amend it. No additional or inconsistent terms on any purchase order or similar document you may submit to Radix IoT will be binding on Radix IoT or have any legal effect.
7. Glossary of Definitions
7.1. Client means an instance of a Licensed Product running on a computer. This means, for example, that two Clients can be either two instances of a Licensed Product running on the same computer or one instance of a Licensed Product running on each of two computers.
7.2. Confidential Information of Radix IoT means (a) the Licensed Products (in any form), the Documentation, and the License Keys; (b) all ideas and information (such as algorithms, design rules, and design techniques) contained or embodied in the Licensed Products, Documentation or License Keys; (c) any other confidential or proprietary information that Radix IoT provides to you in connection with this agreement. Confidential Information does not include any of the following:
information that has become generally available to the public, through no fault of yours (in the case of Radix IoT Confidential Information) or Radix IoT (in the case of your Confidential Information) and that is not still regarded as a trade secret under laws governing information that was negligently or maliciously distributed;
information that the receiving party had already obtained in a tangible form, through lawful means, before obtaining it under this agreement;
information that the receiving party developed independently, without the use of any materials or information obtained from the other party in connection with this agreement;
information that the receiving party has lawfully obtained, in a tangible form, from a third party that had the right to provide it to the receiving party; or
information that the disclosing party releases for publication in writing.
7.3. End User means an individual or company whom you designate and authorize to access and use a Licensed Product as permitted by this agreement.
7.4. Error means a defect in a Licensed Product that causes it to deviate substantially from the specifications in the corresponding Documentation.
7.5. Feedback means any ideas or suggestions you voluntarily provide to Radix IoT (in any manner, whether in writing or orally or otherwise) regarding the Licensed Products, Documentation, or Design Techniques, including possible enhancements or improvements.
7.6. Fees means the amounts you must pay when you purchase products from Radix IoT under this Agreement.
7.7. Intellectual Property Rights means all patent rights, copyrights, trade secret rights, mask works, and trademark rights (including service marks and trade names), and any applications for these rights, in all countries.
7.8. Licensed Products has the meaning given in section 1.
7.9. You (and variations thereof) means the entity that agrees to the terms and conditions of this agreement as the licensee.