CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE LICENSED SOFTWARE OR ITS API. DO NOT USE THE LICENSED SOFTWARE OR API IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. USING ANY PART OF THE LICENSED SOFTWARE OR API INDICATES ACCEPTANCE AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. SOFTWARE; LICENSES.
1.1 Grant. Subject to User’s compliance with all of the terms and conditions of this End User License Agreement (the “Agreement”) Connection Technology Center, Inc. (“CTC”) hereby grants to you (the “User”) a personal, non-exclusive, perpetual, revocable, non-transferable, non-sublicensable, limited license for the term of this Agreement to access and use a single copy of (i) the object code version of CTC’s proprietary ConnectView Web App and all patches, bug fixes and updates thereto supplied by CTC to User, from time to time if at all (collectively, the “Licensed Software”) solely in connection with use of a CTC branded sensor instrument (the “CTC Equipment”) owned by User; and (ii) the the application programming interface for the Licensed Software made available by CTC (the “API”) solely for your adaptation of your permitted use of the Licensed Software in connection with the CTC Equipment. User acknowledges that the foregoing license is limited to User’s use of the Licensed Software and API with CTC Equipment owned by User and that User may not use the Licensed Software or API for any other purpose. Accordingly, User shall not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Software, or any features or functionality of the Licensed Software, or the API to any third party for any reason.
1.2 API Key. User must obtain a security key from CTC in order to access and use the API (the “API Key”). User may not share the API Key with any third party and must keep the API Key secure.
1.3 Proprietary Rights. User acknowledges and agrees that the Licensed Software and API is provided under license, and not sold, to User. User does not acquire any ownership interest in the Licensed Software or API under this Agreement and CTC retains all right, title and interest in and to the Licensed Software and API, subject only to the license expressly granted under this Agreement. User acknowledges and agrees that (i) no configuration or deployment of the Licensed Software or API shall affect or diminish CTC’s rights, title, and interest in and to the Licensed Software or API; and (ii) if User suggests any new features, functionality or performance for the Licensed Software or API CTC shall own, and has all rights to use and incorporate, such suggestions and the Licensed Software and API incorporating such new features, functionality, or performance shall be the sole and exclusive property of CTC. User shall not disassemble, decompile, reverse engineer, access the Licensed Software’s source code, modify, transcribe, store, translate, sell, lease, or otherwise transfer or distribute the Licensed Software or API or its associated documentation, in whole or in part, without prior authorization in writing from CTC. Additionally, User shall not 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 Licensed Software or API. In the event of any breach of the restrictions set forth in this paragraph, User agrees that CTC would suffer irreparable harm and shall therefore be entitled to obtain injunctive relief against User.
2. Collection and Use of Information.
User acknowledges that CTC may collect and store information, including personal information and information regarding use of the Licensed Software and API and about equipment on which the Licensed Software is installed or through which it otherwise is accessed and used. User agrees that the CTC may use such information for any purpose permitted by applicable law and in accordance with CTC’s then current privacy policy, including, but not limited to:
(i) improving the performance of the Licensed Software and API or developing support for the user thereof; and
(ii) verifying User's compliance with the terms of this Agreement and enforcing the CTC's rights, including all intellectual property rights in and to the Licensed Software and API.
User acknowledges and agrees to the terms of the Privacy Policy, and the practices described therein.
3. Warranties.
3.1 Limited Software Warranty. During the term of CTC’s standard warranty for the applicable CTC Equipment with which the Licensed Software is utilized, CTC shall correct or replace any component of the Licensed Software that causes a reproducible error that results in (i) a total loss of functionality of the Licensed Software (i.e., “crashing”) or (ii) the generation of error messages. User’s exclusive remedy with respect to any material nonconformity or defect in the Licensed Software will be limited to, at CTC’s option, (a) the repair or correction of any defective or nonconforming component of the Licensed Software; or (b) the replacement of any defective or nonconforming component of the Licensed Software. CTC shall have no obligation to provide corrections or replacements in the event (x) User modifies the Licensed Software (or any component thereof) without CTC’s prior written consent; (y) the error is caused in whole or in part by misuse of the Licensed Software; or (z) the error is caused in whole or in part by User’s installation or use of the Licensed Software in association with operating environments and platforms other than those specified by CTC. In the event that CTC determines that User’s report of an error is incorrect, CTC may charge User for CTC’s time at CTC’s published rates then in effect.
3.2 DISCLAIMER. EXCEPT FOR THE WARRANTIES SPECIFICALLY SET FORTH IN SECTION 3.1, THE LICENSED SOFTWARE AND API IS PROVIDED TO USER “AS-IS” AND WITH ALL FAULTS AND DEFECTS AND CTC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT OF THE LICENSED SOFTWARE OR API AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. CTC DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR API WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
3.3 Responsibility for User. User is responsible and liable for all uses of the Licensed Software and API through access thereto provided by User, directly or indirectly.
3.4 No API Support. This Agreement does not entitle User to any support for the API. User acknowledges that CTC may update or modify the API from time to time and at its sole discretion and may require you to obtain and use the most recent version of the API. Updates may adversely affect how you have adapted your use of the Licensed Software with the CTC Equipment.
4. INFRINGEMENT AND INDEMNIFICATION.
4.1 Infringement Indemnity. CTC will defend and indemnify User against a third-party claim that the Licensed Software or API used by User in accordance with this Agreement infringes or misappropriates any of the third-party’s intellectual property rights in the United States, provided that: (a) User agrees to notify CTC promptly in writing of receipt of written assertion of the claim; (b) CTC has sole control of the defense and all related settlement negotiations; and (c) User shall provide CTC with the assistance, information, and authority reasonably necessary to perform such defense. CTC shall have no liability for any claim of infringement if, at the time of the claim, User is in default of this Agreement or for any claim resulting from: (i) use of the Licensed Software or API other than in connection as permitted hereunder in connection with CTC Equipment; (ii) User’s alteration or modifications of any of the Licensed Software or API; (iii) User’s use of a superseded release of some or all of the Licensed Software or API, if infringement would have been avoided by the use of a subsequent release of the Licensed Software or API which is provided on a timely basis to User; or (iv) the combination of, or use of the Licensed Software or API with, software, data, or material not furnished by CTC (each, an “Indemnity Exception”). User shall defend, indemnify and hold CTC harmless from all claims, costs, damages and liabilities arising from or related to an Indemnity Exception.
4.2 Mitigation/Termination. In the event that some or all of the Licensed Software or API is held, or is reasonably believed by CTC, to infringe the rights of a third party, CTC shall have the option, at its expense, to modify the Licensed Software and API to make it non-infringing. If CTC cannot modify the Licensed Software and API on a commercially reasonable basis then CTC may terminate this Agreement upon thirty (30) days prior written notice.
4.3 Exclusive Remedy. This Section 4 states CTC’s entire liability and exclusive remedy for infringement of third-party intellectual property rights.
5. TERMINATION.
5.1 Termination by CTC for Material Breach. Notwithstanding the perpetual license granted herein, CTC may terminate this Agreement and all licenses granted hereunder if User breaches this Agreement.
5.2 Effect of Termination. Upon termination of the Agreement for any reason, User’s right to use and possess the Licensed Software and API shall immediately cease. User shall return all copies of the Licensed Software and API and associated documentation to CTC or User may choose to delete all copies from all storage media possessed by User. Termination of this Agreement shall not relieve either party of any obligation accrued prior to the termination date. Termination shall not affect the obligations of the parties under Sections 1.3, 2, 3.2, 5.2 and
6. MISCELLANEOUS
6.1. Limitation of Liability. IN NO EVENT WILL CTC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE LICENSED SOFTWARE OR API; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM LICENSED SOFTWARE OR API 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 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 CTC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CTC’S LIABILITY UNDER THIS AGREEMENT EXCEED THE COSTS INCURRED BY CTC TO PROVIDE ITS WARRANTY OBLIGATIONS SET FORTH IN SECTION 3.2 ABOVE OR, IF APPLICABLE, ITS INDEMNITY MITIGATION COSTS PURSUANT TO SECTION 4.2 ABOVE. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY EVEN IF THE USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
6.2 Severability. If any provision of this Agreement is held to be invalid, void or unenforceable, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
6.3. Assignment. User may not assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, or otherwise provide any third-party with access or use of the Licensed Software or API without the prior written consent of CTC. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
6.4. Governing Law. This Agreement and all claims related to it, its execution or the performance of the parties under it, shall be construed and governed in all respects according to the laws of the State of New York, without regard to the conflict of law provisions thereof. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in Monroe County, and User irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
6.6. Export Regulation. The Licensed Software and API may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The User shall not, directly or indirectly, export, re-export, or release the Licensed Software and API to, or make the Licensed Software and API accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The User 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 Licensed Software and API available outside the US.
6.7 Force Majeure. CTC will not be responsible or liable to User, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or User equipment, loss and destruction of property, cyberattack, or any other circumstances or causes beyond CTC’s reasonable control.
6.8 Entire Agreement. This Agreement shall constitute the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. It is expressly agreed that any terms and conditions of any purchase order or similar instrument of User shall be superseded by the terms and conditions of this Agreement to the extent that such terms may be in conflict.
