PLEASE CAREFULLY READ THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (“LICENSE AGREEMENT”) BEFORE ACCESSING OR OTHERWISE USING THE DIGITAL LUMENS LED- BASED INTELLIGENT LIGHTING SYSTEMS (THE “ILS”), ALL RELATED SOFTWARE (THE “SOFTWARE”) AND DOCUMENTATION (THE “DOCUMENTATION”) THAT IS INCORPORATED IN, OR OTHERWISE PROVIDED WITH, THE ILS (COLLECTIVELY, THE “LIGHT KIT”) OR YOUR USE OF ANY REMOTE MONITORING SERVICES PROVIDED BY DIGITAL LUMENS (THE “SERVICES”). THIS LICENSE AGREEMENT IS ENTERED INTO BY AND BETWEEN DIGITAL LUMENS, INC., A DELAWARE CORPORATION (“LICENSOR”) AND THE PERSON OR ENTITY AGREEING TO THE LICENSE AGREEMENT (“LICENSEE”). THIS LICENSE AGREEMENT IS EFFECTIVE AS OF THE DATE YOU INSTALL THE SOFTWARE OR ANY OTHER COMPONENT OF THE LIGHT KIT OR ACCESS OR USE THE SERVICES. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE LICENSE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS LICENSE AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS LICENSE AGREEMENT. ACCEPTANCE OF THIS LICENSE AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF THE LIGHT KIT, AND/OR THE SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, DO NOT INSTALL, ACCESS OR USE THE SOFTWARE OR THE LIGHT KIT OR USE THE SERVICES.
THIS LICENSE AGREEMENT GOVERNS:
- LICENSEE’S USE OF THE LIGHT KIT AND THE LIGHT RULES SOFTWARE;
- IN INSTANCES IN WHICH YOU HAVE PURCHASED THE LIGHTRULES API YOUR USE OF THE DIGITAL LUMENS APPLICATION PROGRAM INTERFACE (“API”); AND
- IN INSTANCES IN WHICH YOU HAVE PURCHASED THE LIGHTRULES MONITOR SERVICE, ACESS TO AND USE OF THE LIGHTRULES MONITOR SERVICE.
2. License Grants
Subject to the terms and conditions of this License Agreement, Licensor hereby grants Licensee a personal, worldwide, royalty-free, non-assignable, non-transferable, perpetual and non-exclusive license to (a) install, access and use the Software solely (i) for Licensee’s internal business purposes, (ii) in connection with Licensee’s use, configuration and monitoring of the ILS, and (iii) in accordance and compliance with the terms of this License Agreement. Any Software delivered or made available to License is in object code only. Licensor will make available to Licensee error corrections and maintenance releases to the Software which Licensor makes generally available at no additional charge to its customers (“Updates”) for a period of one year from the date of shipment. This Agreement shall not entitle Licensee to upgrades or versions which are separately priced and licensed by Licensor as new products. All rights relating to the ILS, the Software and the Documentation that are not expressly licensed in this License Agreement, whether now existing or which may hereafter come into existence, are reserved for Licensor. Licensee shall not remove, obscure, or alter any proprietary rights notices (including without limitation copyright and trademark notices) which may be affixed to or contained within the Software.
With respect to the API, Subject to Licensee’s full compliance with all of the terms and conditions of this LightRules End User License Agreement, Licensor grants Licensee a non-exclusive, revocable, non-sublicensable, non-assignable, non-transferable license to download and use solely for its own purposes the API and other materials provided by Licensor to develop applications that interoperate with LightRules and in some instances other systems owned by Licensor (“Digital Applications”). Licensee may not install or use the API for any other purpose without Licensor’s prior written consent. Licensee shall not use the API in connection with the development, sale, license or distribution of any commercial product or for any illegal purpose. Licensee agrees that Licensor shall have no liability whatsoever for any use Licensee makes of the API. Licensee shall indemnify and hold harmless Licensor from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from Licensee’s use of the API.
Solely with respect to the Lightrules Monitor Service, Licensee hereby grants Licensor the right to remotely access Licensee’s internal information technology network via electronic means solely for the purpose of accessing the ILS and LightRules Software in order to provide such Services.
Licensee will not, directly or indirectly, (i) Copy the Software or Documentation in any manner or for any purpose; (ii) install, access or use any component of the Light Kit for any purpose not expressly granted in Section 2 above; (iii) resell or distribute the Light Kit or any component thereof, or publicly display or publicly perform the Software or Documentation, or any copy thereof, in each case, by transfer, lease, loan or any other means, or make it available for use by others in any time-sharing, service bureau or similar arrangement; (iv) disassemble, decrypt, extract, reverse engineer or reverse compile the ILS, Software, or Services or otherwise attempt to discover the source code, confidential algorithms or techniques incorporated in the Software or the ILS; (v) export the Software in violation of any applicable laws or regulations; (vi) modify, translate, adapt, or create derivative works from the software or the documentation related thereto; (viii) circumvent, disable or otherwise interfere with security-related features of the Software, the ILS or the Services.
This License Agreement is effective until terminated. Licensor may terminate this License Agreement with or without notice if Licensee materially breaches this License Agreement or takes any action in derogation of Licensor’s or its licensor’s rights in or to any component of the Light Kit. Upon termination, Licensee shall cease all use of the Software and Documentation. All provisions of Sections 5, 6 and 7 of the License Agreement shall survive termination.
Licensor warrants that the media on which the Software is recorded is free from defects in materials or workmanship and the Software will conform in all material respects with its Documentation for a period of ninety (90) days. Licensee must notify Licensor in writing within the warranty period of its claim of any such defect. Licensor will replace defective media at no additional charge, provided the Licensee returns the defective item with dated proof of payment to Licensor within ninety (90) days of the date of delivery. This is Licensor’s entire liability and the Licensee’s sole and exclusive remedy in connection with any breach of this License Agreement, including, but not limited to, any breach of warranty. Licensor does not warrant that operation of the Software will be uninterrupted or error-free, or that it will satisfy the Licensee’s requirements.
EXCEPT AS EXPRESSLY PROVIDED WITH THE LIGHT KIT, OR OTHERWISE SET FORTH IN THIS LICENSE AGREEMENT, THE LIGHT KIT WAS PROVIDED “AS IS” AND LICENSOR MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS. NEITHER THIS LICENSE AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE.
7. Limitation of Liability
IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST PROFITS, REVENUE OR DATA, OR OTHER INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATED TO THE LIGHT KIT OR THE USE THEREOF. IN NO EVENT SHALL LICENSOR’S LIABILITY TO LICENSEE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF $500 AND THE FEES PAID BY LICENSEE WITH RESPECT TO THE LIGHT KIT. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF LICENSOR HAS BEEN ADVISED, OR IS OTHERWISE AWARE, OF THE POSSIBILITY OF DAMAGES IN EXCESS OF SUCH LIMITATIONS AND EVEN IF THE WARRANTY REMEDY OF SECTION 5 FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE AND LICENSOR AGREE THAT THE DISCLAIMERS OF SECTION 5 AND THE LIMITATION OF LIABILITY OF THIS SECTION 6 ARE REASONABLE. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS OF SECTIONS 5 AND 6 OF THE LICENSE AGREEMENT MAY NOT APPLY TO LICENSEE. IN SUCH STATES, THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Licensee may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Licensor with respect to the ILS, Software or Services. Licensor shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Should Licensor determine that it wishes to so proceed, Licensor, upon its discretion, may elect to integrate the new enhancement, feature and/or functionality into its overall product planning process. The Parties agree that such Feedback shall be given voluntarily, and Licensee acknowledges and agrees that Licensor shall own all right, title and interest in and to the Feedback, all developments based upon such Feedback and all intellectual property rights in and to the foregoing. Licensee hereby assigns and does agree to assign to Licensor all right, title and interest it may have in and to the Feedback and shall cooperate with Licensor as reasonably necessary in order to give full effect to such assignment.
- If any term or condition of this License Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms shall remain in force. Further, such provision will be reformed only to the extent necessary to make it enforceable and the term or condition which is held to be illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the parties.
- Nothing in this License Agreement shall be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
- All disputes, claims or controversies arising out of this License Agreement, or the negotiation, validity or performance of this License Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this License Agreement, or the negotiation, validity or performance of this License Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Courts that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
- Licensee may not assign this License Agreement without the prior written consent of Licensor. Any purported assignment in contravention of this section is null and void. A transfer of a controlling interest in the equity of Licensee shall be deemed an assignment for purposes of this subsection. Subject to the foregoing, this License Agreement will bind and inure to the benefit of any successors or assigns.
- Licensee will not knowingly, in conjunction with this License Agreement or its performance (i) export or re-export, from the United States directly or indirectly, any technical data (as defined by the U.S. Export Administration Regulations); or (ii) disclose such technical data for use in, or export or re-export directly or indirectly, any direct product of such technical data, including software, to any destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law, including but not limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria, or to any person on the Table of Denial Orders, the Entity List or the List of Specially Designated Nationals, without obtaining prior authorization from the U.S. State Department, U.S. Department of Commerce and/or other competent government authorities to the extent required by those laws. Licensee shall cooperate with Licensor in the evaluation and securing of all necessary export authorizations and licenses.
- The Software provided to Licensee hereunder are “commercial items” as that term is defined at 48 C.F.R.2.101 (October 1995) consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept 1995) and are provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 (June 1995), all U.S. Government Licensees acquire the Software and its associated Documentation with only those rights set forth therein.
- This License Agreement constitutes the entire agreement between the parties regarding the subject matter hereof, and it supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This License Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both parties. Failure or delay by either party to enforce any provision of this License Agreement will not be deemed a waiver of future enforcement of that or any other provision.