This is a legal agreement between you
and LonMark International, a California
nonprofit mutual benefit corporation with
its principal place of business at 2901
Patrick Henry Drive, Santa Clara, California
95054, U.S.A. (“LonMark”).
YOU MUST READ AND AGREE TO THE TERMS OF
THIS SOFTWARE LICENSE AGREEMENT BEFORE
ANY LICENSED SOFTWARE CAN BE DOWNLOADED
OR INSTALLED OR USED. BY CLICKING ON THE “I
AGREE” OR “ACCEPT” BUTTON
OF THIS SOFTWARE LICENSE AGREEMENT, OR
DOWNLOADING LICENSED SOFTWARE, OR INSTALLING
LICENSED SOFTWARE, OR USING LICENSED SOFTWARE,
YOU ARE AGREEING TO BE BOUND BY THE TERMS
AND CONDITIONS OF THIS SOFTWARE LICENSE
AGREEMENT. IF YOU DO NOT AGREE WITH THE
TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE
AGREEMENT, THEN YOU SHOULD EXIT THIS PAGE
AND DO NOT DOWNLOAD OR INSTALL OR USE ANY
LICENSED SOFTWARE. IF YOU REJECT THIS SOFTWARE
LICENSE AGREEMENT AFTER HAVING PAID ANY
RELATED LICENSE FEES TO LONMARK, YOU MUST
INFORM LONMARK WITHIN THIRTY (30) DAYS
IN ORDER TO RECEIVE A REFUND OF THE LICENSE
FEES ACTUALLY PAID.
SOFTWARE LICENSE AGREEMENT
LonMark hereby grants to You, and
You hereby accept a limited, non-exclusive,
non-transferable license to use the Licensed
Software and any updates or upgrades thereto
provided by LonMark according to the terms
set forth below. If the Licensed Software
is being provided to You as an update or
upgrade to software which You have previously
licensed, then You agree the Licensed Software
may be used and transferred only as part
of a single product package.
For the purpose of this Software License Agreement (“Agreement”), the following terms shall have the following meanings. Other terms are defined elsewhere in this Agreement.
“Documentation” means the documentation included with or provided for the Licensed Software.
“Licensee Device” means a product designed for use in a device network, which product You desire to self-certify as conforming to the LonMark Interoperability Guidelines.
“You” means Licensee, i.e. the company, entity, or individual who has rightfully acquired the Licensed Software.
License Fee. Licensee must pay to LonMark
in advance the required License Fee in
order to gain access to the Licensed Software
for a one-year period. To retain access,
the then-current License Fee must be paid
annually. Per Certification Fee. Licensee
must pay to LonMark in advance the required
Certification Fee prior to commencing certification
of each Licensee Device. Licensee is responsible
for all taxes, withholding fees, and local
government reporting requirements.
LICENSE GRANT AND RESTRICTIONS
a) Use the Licensed Software solely to certify Devices as conforming to the LonMark Interoperability Guidelines; and
b) Install and use the Licensed Software for such purposes on one or more computers.
You may not, and may not permit others to:
a) Copy the Licensed Software except as necessary to use the Licensed Software as permitted above;
b) Modify, translate, reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Licensed Software or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from any of the Licensed Software that has not been provided in source code form (except to the extent that such activities may not be prohibited under applicable law);
c) Alter, adapt, prepare derivative works of, modify or translate the Licensed Software in any way for any purpose, including (but not limited to) error correction; or
d) Distribute, rent, loan, lease, transfer or grant any rights in the Licensed Software or modifications thereof in any form to any person or entity without the prior written consent of LonMark.
LonMark Proprietary Rights. This license is not a sale. Title, copyrights and all other rights to the Licensed Software and any copy made by You remain with LonMark and its suppliers.
TERM AND TERMINATION
Term. This license will remain in effect for one (1) year, unless terminated earlier as set forth herein. This license may be renewed for additional one-year periods by payment of the License Fee upon expiration of the current one-year term.
Termination. Unauthorized copying of the Licensed Software or failure to comply with the above restrictions will result in automatic termination of this Agreement and will make available to LonMark other legal and equitable remedies.
Obligations Upon Expiration or Termination. Upon expiration or termination of this license for any reason, Licensee must destroy all copies of the Licensed Software. Any use of the Licensed Software after expiration or termination is unlawful.
You may make appropriate and truthful reference to LonMark in Your company literature and product literature; provided that You properly attribute the LonMark trademark and do not use the name of LonMark or any LonMark trademark in Your company name or product name. No license is granted, express or implied, under any LonMark trademarks, trade names, trade dress, or service marks. For permission to use LonMark logos, You must enter into an appropriate LonMark Logo License Agreement.
Use of Licensed Software does not give You the right or permission to refer to tested Licensee Devices as Certified, Conforming, Compliant, or Compatible with the LonMark Interoperability Guidelines or the LonMark standard. Only after receiving written permission from LonMark may You refer to the tested Licensee Device as being Certified (or other specifically permitted designation).
LIMITED WARRANTY AND DISCLAIMERS
Limited Warranty. LonMark warrants to Licensee that, for a period of ninety (90) days from the date of downloading, the Licensed Software programs will perform substantially in accordance with the Licensed Software specifications contained in the Documentation. LonMark’s entire liability and Your exclusive remedy under this warranty will be, at LonMark’s option and expense, to use reasonable commercial efforts to correct or provide a work-around for errors, to replace the Licensed Software with functionally equivalent Licensed Software that substantially conforms to the specifications, or to terminate this Agreement and refund the current annual License Fee less a reasonable amount for use if any Licensee Device certification has been completed during the current annual term, and refund the Certification Fee paid for the cancelled certification testing. LonMark does not warrant that the operation of the Licensed Software will be uninterrupted or error free or that the Licensed Software will meet Your specific requirements.
Warranties Exclusive. TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE, INCLUDING WARRANTIES, TERMS, OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, NON-INFRINGEMENT, AND ACCURACY OF INFORMATION GENERATED, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
LIMITATION OF LIABILITY
No Non-Direct Damages. TO THE FULL EXTENT ALLOWED BY LAW, NEITHER LONMARK NOR ITS SUPPLIERS WILL BE LIABLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR ANY DAMAGES THAT ARE NOT DIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUPPLY OR USE OF THE LICENSED SOFTWARE, EVEN IF LONMARK HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
Dollar Cap. TO THE FULL EXTENT ALLOWED BY LAW, LONMARK’S AND ITS SUPPLIERS’ MAXIMUM LIABILITY TO LICENSEE FOR DAMAGES HEREUNDER, IF ANY, SHALL NOT EXCEED THE CURRENT YEAR’S LICENSE FEE AND THE CURRENT CERTIFICATION FEE PAID BY LICENSEE TO LONMARK HEREUNDER.
Validity. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
YOU ASSUME RESPONSIBILITY FOR, AND HEREBY AGREE TO USE YOUR BEST EFFORTS IN, DESIGNING AND MANUFACTURING LICENSEE DEVICES TO PROVIDE FOR SAFE OPERATION THEREOF, INCLUDING, BUT NOT LIMITED TO, COMPLIANCE OR QUALIFICATION WITH RESPECT TO ALL APPLICABLE SAFETY LAWS, REGULATIONS AND AGENCY APPROVALS. LONMARK PRODUCTS AND TECHNOLOGY ARE NOT DESIGNED OR INTENDED FOR USE AS COMPONENTS IN EQUIPMENT INTENDED FOR SURGICAL IMPLANT INTO THE BODY, FOR OTHER APPLICATIONS INTENDED TO SUPPORT OR SUSTAIN LIFE, FOR USE IN FLIGHT CONTROL OR ENGINE CONTROL EQUIPMENT WITHIN AN AIRCRAFT, FOR ULTRA-HAZARDOUS ACTIVITIES, OR FOR ANY OTHER APPLICATION IN WHICH THE FAILURE THEREOF COULD CREATE A SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY OCCUR, AND YOU SHALL HAVE NO RIGHTS HEREUNDER FOR ANY SUCH APPLICATIONS.
You acknowledge that You shall either (i) inform the end-user that You are the primary support contact for Licensee Devices and that LonMark will not support Licensee Devices, or (ii) inform the end-user that there will be no support for Licensee Devices.
Entire Agreement. This Agreement is intended as the complete, final and exclusive statement of the terms of the agreement between LonMark and Licensee and supersedes all prior understandings, writings, proposals, representations or communications, oral or written, relating to the Licensed Software.
Waiver. LonMark’s failure to enforce compliance with any provision of this Agreement shall not constitute a waiver of such provision unless accompanied by a clear written statement that such provision is waived. LonMark’s waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed.
Severability. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of the Agreement shall continue in full force and effect.
Assignment. Licensee may not assign (directly, by operation of law, or otherwise) this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the LonMark. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of, and is enforceable by the Parties hereto and their respective successors and assigns.
Governing Law and Venue. This Agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California, as applied to contracts made and to be performed in California, without applying conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this Agreement. The Superior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith, and Licensee agrees not to object to the personal jurisdiction of such courts.
U.S. Government Rights. This section applies only if You are acquiring the Licensed Software on behalf of any part of the U.S. Government. The Licensed Software programs and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, display or disclosure of the Licensed Software programs and/or Documentation by the U.S. Government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Any technical data provided that is not covered by the above provisions is deemed to be “technical data--commercial items” pursuant to DFAR Section 227.7015(a). Any use, modification, reproduction, release, performance, display, or disclosure of such technical data shall be governed by the terms of DFAR Section 227.7015(b).
Survival. The following sections will survive expiration or termination of this Agreement: LonMark Proprietary Rights; Obligations Upon Expiration or Termination; Warranties Exclusive; Limitation of Liability; Safe Operation; Support; and General.
English Language. The parties hereto confirm that it is their wish that this Agreement and other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattache, soient rédigés en langue anglaise.