End User License Agreement
BY INSTALLING OR USING THE LICENSED SOFTWARE FROM ODIN BUILDING AUTOMATION SYSTEMS, LLC (“ODIN”), THE INDIVIDUAL IF ACTING ON BEHALF OF HIMSELF OR HERSELF (“INDIVIDUAL CUSTOMER”) OR THE INDIVIDUAL WHO IS ACTING ON BEHALF OF AN ENTITY (“ENTITY CUSTOMER”, THE INDIVIDUAL CUSTOMER AND ENTITY CUSTOMER TOGETHER ARE “CUSTOMER”) IS AGREEING TO BE BOUND BY THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”).
IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT INSTALL, COPY, OR USE THE LICENSED SOFTWARE. THE “EFFECTIVE DATE” FOR THIS AGREEMENT IS THE DAY CUSTOMER FIRST DOWNLOADS, INSTALLS OR USES THE LICENSED SOFTWARE.
1. DEFINITIONS.
“Activation Key” means, collectively, the specific Serial Number, code, and authorization for each copy of the Licensed Software issued by ODIN to Customer.
“Affiliates” or “Affiliate” means an entity, institution, or organization that controls, is controlled by, or is under common control with another entity, institution, or organization, with at least majority ownership.
“Authorized Reseller” means an authorized distributor, authorized reseller, or dealer of the Licensed Software.
“Authorized User” means an employee, contractor, registered student, research assistant, or agent of Entity Customer authorized by Entity Customer to use the Licensed Software.
“Concurrent Authorized Users” means Authorized Users who use the software at the same time in accordance with the terms of this Agreement.
“Confidential Information” has the meaning set forth in Section 7 of this Agreement.
“Customer Enhancements” means enhancements to ODIN Special Files in which the copyright is owned by Customer and which are derivative works of the ODIN Enhancements.
“Dealer” means resellers authorized by ODIN to sell the Licensed Software to Customers.
“Documentation” means the user manuals and supporting documentation in electronic form provided with the Licensed Software under this Agreement.
“License Fee” means the applicable fee for which Customer licenses the Licensed Software.
“Licensed Software” means the specific software licensed to Customer under the terms of this Agreement (as specified in the License and Activation Key issued to Customer), including any Updates and Upgrades thereto.
“Serial Number” means a set of unique characters associated with a specific copy of the Licensed Software issued by ODIN to Customer (based on the specific configuration and release of the Licensed Software and the license type, license term, and/or number of Concurrent Authorized Users).
“ODIN Enhancements” means ODIN Special Files or enhancements to ODIN Special Files in which the copyright is owned by ODIN or distributed by ODIN from time to time. ODIN Enhancements are not defined as Software.
“ODIN Website” means www.connectwithODIN.com.
“Subscription” is the binding, non-cancellable contract for the use of the Licensed Software for the Subscription Term.
“Subscription Term” means the fixed term, of not less than one (1) year, beginning on the Effective Date and continuing until the Subscription expires, unless earlier terminated in accordance with this Agreement. Subscriptions shall automatically be renewed for an additional one (1) year period unless terminated in accordance with this Agreement.
“Trial Period” means the thirty (30) day period during which Customer may review and evaluate the Licensed Software without charge.
“Update” means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.
“Upgrade” means a subsequent version of the Licensed Software that ODIN designates as a new release and makes generally commercially available or a different flavor of the Licensed Software that ODIN makes generally commercially available.
2. LICENSE AND ACTIVATION KEY, LICENSE GRANTS, AND OWNERSHIP.
2.1 Trial License.
ODIN may grant Customer a limited license to use, access and download the Licensed Software during the initial Trial Period (“Trial License”). The Trial License shall be solely used to review and evaluate the Licensed Software during the limited Trial Period to determine whether to purchase a Subscription to the Licensed Software. During the Trial Period Customer may use one (1) copy of the Licensed Software in accordance with the terms and conditions of this Agreement. Customer may not use a Trial License for any other purpose. At the end of the Trial Period, all rights to access or use the Licensed Software shall end and the Trial License will expire. ODIN has the right to terminate a Trial License at any time for any reason. Customer may discontinue its use of the Trial License at any time. If Customer decides not to obtain a Subscription upon expiration of the Trial Period, Customer will promptly cease using and will delete the Licensed Software from its computer systems. If Customer decides to use the Licensed Software after the Trial Period, Customer must obtain a subsequent Subscription to continue use of the Licensed Software.
2.2 License and Activation Key.
ODIN shall issue Customer a “License and Activation Key” via website, email, fax, postal mail, or courier (e.g., FedEx, UPS, DHL) that sets forth the specific Licensed Software, the specific number of Concurrent Authorized Users for Entity Customers, and the Activation Key associated with the Licensed Software (the License and Activation Key). The License and Activation Key is hereby incorporated by reference into this Agreement. Certain of the licenses in Section 2.2(b) permit use by Authorized Users of Entity Customer and the Entity Customer is responsible for compliance of all such Authorized Users with the Agreement and shall be liable for the breach of the terms of this Agreement by such Authorized Users.
2.3 Licenses.
(a) Single-User License Grant. This Section 2.3(a) applies only to an Individual Customer whose License and Activation Key issued by ODIN specifies the “License Type” as “Single User”. A Single-User license is for a named individual who is identified as the only Authorized User. Subject to the terms and conditions of this Agreement, ODIN grants to Customer a non-assignable, nontransferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, solely for Customer’s internal business, research, or educational purposes, and solely by the Individual Customer. The Individual Customer may install up to three (3) copies of the Licensed Software, provided that the Individual Customer is the sole user of each copy.
(b) Concurrent Authorized-User License Grant.
(i) Network License Grant – Licensed Software. This Section 2.3(b)(i) applies only to a Customer whose License and Activation Key issued by ODIN specifies the “License Type” as “Network”. Subject to the terms and conditions of this Agreement, ODIN grants to Customer a non-assignable, nontransferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, within a single local geographic location or physical site solely for Customer’s internal business, research, or educational purposes. Customer is authorized by ODIN to install the Licensed Software on an unlimited number of computers or devices as long as the specific number of Concurrent Authorized Users for which Customer has paid the applicable License Fee is not exceeded.
(ii) Compute-Server License Grant – Licensed Software. This Section 2.3(b)(ii) applies only to a Customer whose License and Activation Key issued by ODIN specifies the “License Type” as “Compute Server”. Subject to the terms and conditions of this Agreement, ODIN grants to Customer a non-assignable, nontransferable license, without the right to sublicense, to use and execute the Licensed Software, in object-code form only, installed on a single computer server solely for Customer’s internal business, research, or other commercial purposes. Customer is authorized by ODIN to install the Licensed Software on only one computer server or one node of a cluster solely for the use of the specific number of Concurrent Authorized Users for which Customer has paid the applicable License Fee.
(iii) Customer Obligations. This Section 2.3(b)(iii) applies to a Customer whose License and Activation Key issued by ODIN specifies the “License Type” as “Network” or “Compute Server”. Customer is responsible for managing the usage of the Licensed Software to ensure that such usage does not exceed the specific number of Concurrent Authorized Users for which Customer has paid the applicable License Fee. Customer may add additional Concurrent Authorized Users to Customer’s account for the Licensed Software by placing an order with ODIN or an Authorized Reseller. One copy of the Licensed Software may be made for backup purposes only.
2.4 Documentation License.
Subject to the terms and conditions of this Agreement, ODIN grants to Customer a non-assignable, nontransferable license, without the right to sublicense, to use the Documentation in connection with Customer’s authorized use of the Licensed Software. Customer may not reproduce or distribute the Documentation in any manner, whether physically or electronically, without the express written permission of ODIN. Entity Customer may make the Documentation available on any website or private network administered by the Entity Customer.
2.5 Activation Key.
ODIN shall issue to Customer a License and Activation Key for each copy of the Licensed Software. Customer is entirely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the copy of the Licensed Software assigned by Serial Number to Customer (e.g., maintenance, support, or license or subscription fee charges). The Licensed Software shall be deemed accepted upon the delivery of the Activation Key to Customer by ODIN or an Authorized Reseller.
2.6 License to ODIN Enhancements.
Subject to the terms and conditions of this Agreement, ODIN grants to Customer a non-assignable, nontransferable, royalty-free license, without the right to sublicense, to use the ODIN Enhancements solely with the Licensed Software for Customer’s internal business, research, or educational purposes. In addition, subject to the terms and conditions of this Agreement, ODIN grants to Customer a non-assignable, nontransferable, royalty-free license to modify, reproduce, and distribute the ODIN Enhancements to create Customer Enhancements solely for use with the Licensed Software. Customer may distribute the Customer Enhancements to third parties either at no charge or for a fee. THE ODIN ENHANCEMENTS ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. ODIN AND ITS THIRD-PARTY LICENSORS HEREBY EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE ODIN ENHANCEMENTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
2.7 License to Customer Enhancements.
If Customer submits Customer Enhancements to ODIN or makes Customer Enhancements generally available for modification, use, or distribution without charge by third parties, Customer grants to ODIN a perpetual, irrevocable, transferable, royalty-free license to modify, reproduce, and distribute the Customer Enhancements, with the right to sublicense through multiple tiers of distribution. THE CUSTOMER ENHANCEMENTS ARE PROVIDED TO ODIN ON AN “AS IS”’ AND “WHERE IS” BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. CUSTOMER HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE CUSTOMER ENHANCEMENTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
2.8 Restrictions.
Customer shall not, nor permit any person (including any Authorized User) to: (i) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of the Licensed Software (except to the extent that this restriction is expressly prohibited by law); (ii) modify, translate, or create derivative works of the Licensed Software; (iii) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to the Licensed Software (except as expressly permitted under this Agreement); (iv) remove, modify, or obscure any copyright notices or other proprietary notices or legends appearing on or in the Licensed Software, or any portion thereof; (v) transfer, use, or export the Licensed Software in violation of any applicable laws, rules, or regulations of any government or governmental agency; (vi) use the Licensed Software or any system services accessed through the Licensed Software to disrupt, disable, or otherwise harm the operations, software, hardware, equipment, and/or systems of a business, institution, or other entity, including, without limitation, exposing the business, institution, or other entity to any computer virus, trojan horse, or other harmful, disruptive, or unauthorized component; or (vii) embed the Licensed Software in any third-party applications, unless otherwise authorized in writing in advance by an officer of ODIN.
2.9 Ownership.
The Licensed Software, ODIN Enhancements, and Documentation contain copyrighted material and other proprietary material and information of ODIN and/or its licensors. ODIN and/or its licensors shall retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, ODIN Enhancements, and Documentation. Customer will not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained within the Licensed Software, ODIN Enhancements, or Documentation, or any component thereof.
3. TECHNICAL SUPPORT AND UPGRADES AND UPDATES.
3.1 Technical Support.
ODIN agrees to provide Dealer with technical support services which include periodic distribution of bug fixes and minor enhancements as Updates scheduled by ODIN. Installation support inquiries by telephone will be accepted by ODIN during normal business hours. Technical support email inquiries are accepted at any time and will be answered during normal ODIN business hours. ODIN will attempt to respond to inquiries within the same business day.
3.2 Updates and Upgrades.
To receive and use an Upgrade, Dealer must pay the applicable fees for that Upgrade and agree to ODIN’s standard terms and conditions governing the use of that Upgrade. If no such standard terms and conditions are stated by ODIN, the terms of this Agreement shall apply, and the Upgrade shall be deemed Licensed Software. ODIN will issue a new Activation Key for the Upgrade. Once ODIN issues the new Activation Key for an Upgrade version, Dealer shall be able to continue to use the prior version of the Licensed Software.
4. WARRANTIES.
4.1 Limited Warranty.
ODIN warrants that, during the Subscription Term, the Licensed Software will operate in substantial conformity in all material respects with the functional specifications provided in the Documentation under normal use. This limited warranty shall not cover, and ODIN shall not be liable for, any failures caused by third party hardware and software (including Customers’ own systems); failures caused by any unauthorized modification of the Licensed Software by Customer or Customers’ agents; Customers’ negligence, abuse, misuse or misapplication of the Licensed Software; or any failure by Customer to follow ODIN’s installation, operation or maintenance instructions. This limited warranty is non-transferable, and the limited warranties set forth herein shall only apply when Customer provides written notice of the non-conformity to ODIN. Customer’s sole and exclusive remedy, and ODIN’s entire liability for any breach of the warranties provided herein, is for ODIN, at its sole discretion: (i) to use commercially reasonable efforts to correct defects in the Licensed Software to conform in all material respects with the Documentation; or (ii) repair or replacement of the Licensed Software. If, within thirty (30) days from the date of written notice of said breach, ODIN is unable to materially restore the functionality of any non-conforming Licensed Software or replacement is not possible, ODIN may provide Customer with a pro-rata refund of the license fees which have been paid in advance (if any) for the Licensed Software upon the return and removal (as applicable) of all such Licensed Software from Customers servers and devices.
4.2 Disclaimer of Warranty.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 4, ODIN MAKES, AND CUSTOMER RECEIVES, NO OTHER WARRANTIES RELATED TO THE LICENSED SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ODIN SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSED SOFTWARE IS PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE LICENSED SOFTWARE IS AT ITS OWN RISK. ODIN DOES NOT WARRANT THAT THE FUNCTIONS OF THE LICENSED SOFTWARE WILL MEET CUSTOMERS REQUIREMENTS OR EXPECTATIONS OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS OR DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED. CUSTOMER ASSUMES RESPONSIBILITY FOR SELECTING THE LICENSED SOFTWARE AND THE RESULTS ACHIEVED.
5. TERM AND TERMINATION.
5.1 Term.
This Agreement will commence on the Effective Date and shall continue until the earlier to occur of the expiration of the Subscription Term or the termination of this Agreement as set forth below. In the case of additional Concurrent Authorized Users who are authorized and added after the initial License Fee payment, the term of their usage of the Licensed Software shall be coterminous with the preexisting then-current term. If Customer purchases an Upgrade, the term of the Agreement shall be the specific term set forth in the new License and Activation Key issued for the Upgrade.
5.2 Termination.
Either party may terminate this Agreement:
i. Upon receipt of written notice from the other party, not less than thirty (30) days prior to, but not taking effect until, the expiry of the Subscription Period; or
ii. In the event of a material breach of this Agreement (excluding any breaches for which an exclusive remedy is expressly provided), and such breach has not been cured within thirty (30) days after receipt of written notice thereof, except that ODIN may immediately terminate this Agreement upon Customer’s breach of Section 2.8. For clarity, a material breach of this Agreement includes, but is not limited to, Customer’s failure to timely pay License Fees or any other amounts due hereunder, Customer exceeds the scope of the license granted hereunder, or any violation of the confidentiality obligations under this Agreement; or
iii. Upon the bankruptcy or insolvency of the other party or upon the commencement of any voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other party.
5.3 Effect of Expiration or Termination.
Upon any termination or expiration of this Agreement for any reason:
i. The rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate and Customer will have no further right to possess or use the Licensed Software. Upon expiration of the Subscription Term, the Activation Key will expire, and the Licensed Software will cease to function.
ii. Customer shall immediately cease any further use of the Licensed Software and erase all full and partial copies of the Licensed Software. On ODIN’s request, Customer will provide ODIN with a signed written statement confirming the Licensed Software has been permanently removed from Customer’s systems.
iii. Each party will return or destroy, all tangible embodiments of Confidential Information in such party’s possession or control.
iv. All fees that have accrued as of such expiration or termination, and Sections 2, 4, 5, 6, 7, 8, and 9 of this Agreement shall survive any expiration or termination of this Agreement.
ODIN shall not provide refunds if Customer cancels or ceases using the Licensed Software during the Subscription Term. Additionally, in the event of termination for Customer’s breach of this Agreement, ODIN shall not be required, and Customer shall not be entitled to, any refund.
6. FEES AND PAYMENT TERMS.
Dealer licenses the Licensed Software from ODIN. This Agreement is between Dealer and ODIN solely. The applicable License Fee is specified on the ODIN Website or in the specific price proposal provided by ODIN or an Authorized Reseller. The payment terms and conditions for the License Fee payable to ODIN are specified on the ODIN invoice or in the specific price proposal provided by ODIN. The payment terms and conditions for the License Fee payable to an Authorized Reseller are as specified by the specific Authorized Reseller. ODIN may terminate this Agreement and invalidate Dealer’s Activation Key if the billing or contact information is false, fraudulent, or invalid. Customer will pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial, or local government entity or any non-U.S. government entity on the transactions contemplated by this Agreement, excluding taxes based upon ODIN’s net income.
7. CONFIDENTIALITY.
Customer and ODIN agree to maintain the confidentiality of any confidential or proprietary information of one party (the “disclosing party”) received by the other party (the “receiving party”) during the term of, or prior to entering into, this Agreement that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”). The Licensed Software is copyrighted and shall be deemed ODIN’s Confidential Information. The Documentation is copyrighted material of ODIN. This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information with no less than reasonable care. All the disclosing party’s information remains the property of the disclosing party.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL ODIN BE LIABLE TO CUSTOMER OR ANY PARTY RELATED TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER IN AN ACTION IN CONTRACT, WARRANTY OR TORT, EVEN IF ODIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ODIN’S TOTAL LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY CUSTOMER FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OR EXCLUSION OF CERTAIN TYPES OF WARRANTIES, DAMAGES, OR LIABILITIES, THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
9. GENERAL.
Except as expressly provided herein, Customer may not assign or transfer any of its rights under this Agreement (including its licenses with respect to the Licensed Software and Documentation) without the prior written consent of ODIN. Unless the Customer is required by statute or regulation to apply the law of a state other than New Hampshire, this Agreement will be governed by and construed in accordance with the laws of the State of New Hampshire and the federal U.S. laws applicable therein, excluding any conflicts of law provisions, and the Customer and ODIN agree to submit to the personal and exclusive jurisdiction of the courts located in Hillsborough County, New Hampshire. If the statute or regulation applying to the Customer requires the application of a law of a state other than New Hampshire the parties agree that the terms of this Agreement shall be governed and construed in accordance with the law specified in such statute or regulation, and the Customer shall give written notice of such requirement to ODIN. The application of such different law shall be effective upon the receipt of such written notice by ODIN. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is found void and unenforceable by a court of competent jurisdiction, it will be replaced to the extent possible by ODIN with a provision that comes closest to the meaning of the original provision and the remainder of this Agreement will remain in full force and effect. This Agreement and the documents referenced in this Agreement constitute the entire agreement between Customer and ODIN relating to its subject matter and all terms herein and supersede all prior or contemporaneous agreements or understandings. This Agreement may be modified or changed only in writing signed by authorized representatives of Customer and ODIN. Notices hereunder shall be in writing and addressed to Customer at the address provided when purchasing this license or, in the case of ODIN, when addressed to ODIN Building Automation Systems LLC, USA.
