Embedded Software License Agreement
AGREEMENT: The Product(s) in this container, archive, or repository include embedded software and associated documentation (collectively, the “Software”) owned by EnOcean GmbH or its affiliates (“EnOcean”). EnOcean agrees to license the Software to you upon the terms and conditions described below (the “License"). If you do not agree to the License terms, do not break the seal if included and do not use the Product. If you purchased the Product, you may return the unused Product within 15 days to the vendor from whom you purchased the Product for a full refund. If you are entering into this License on behalf of a company or other legal entity, you represent that you have the right to bind that entity to all terms, and “you” refers both to you personally and such entity. As a condition of this License, you agree to comply with EnOcean's Sales Order Terms and Conditions, a copy of which is available upon request. The Sales Order Terms and Conditions are incorporated by reference herein. In case of conflict between the Sales Order Terms and Conditions and this License, the conflicting term in this License shall take precedence.
USE AND DISTRIBUTION: You may use the Software only in the form and in the Product(s) delivered to you or in EnOcean products explicitly referenced by the Software. You may distribute the Software in the form delivered to you to: (i) your customer as part of a connected system products sold or otherwise distributed by you or (ii) a third party that agrees in writing to be bound by the terms of this License. In case you have purchased an electronic activation key (“License Key”) for use with this Product, the License term shall commence upon activation of the License Key and shall be subject to any additional terms and limitations provided with the License Key. For sake of clarity, License Keys may not be distributed or shared with any third parties, except with EnOcean's prior written consent.
ADDITIONAL RESTRICTIONS: You shall not use, modify, reproduce, reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Software (except to the extent that such limitations may not be prohibited by law), sublicense, or distribute the Software or Documentation other than as permitted by this License. You shall not remove any proprietary notices, labels or marks on the Product(s), Software or Documentation. No license is granted to any EnOcean trademarks.
OWNERSHIP AND NOTICE: Except for the limited rights granted above, EnOcean and its suppliers retain all right, title and interest in and to the Software and Documentation, including copyrights and other proprietary rights. Certain components of the Software are subject to open source and third party licenses, the terms and conditions of which are on EnOcean's website at Open Source and Third-Party License Terms. As a condition of the License, you agree to comply with the open source and third party license terms. Unless required by applicable law, such components are provided on an ‘AS IS’ BASIS, WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND.
SAFE OPERATION: YOU ASSUME RESPONSIBILITY FOR, AND HEREBY AGREE TO USE YOUR BEST EFFORTS IN, DESIGNING, MANUFACTURING, COMMISSIONING, MONITORING, AND CONTROLLING SYSTEMS THAT INCORPORATE THE PRODUCT(S) TO PROVIDE FOR SAFE OPERATION THEREOF, INCLUDING, BUT NOT LIMITED TO, COMPLIANCE OR QUALIFICATION WITH RESPECT TO ALL SAFETY LAWS, REGULATIONS AND AGENCY APPROVALS, AS APPLICABLE. ENOCEAN PRODUCTS AND SOFTWARE ARE NOT DESIGNED OR INTENDED FOR USE IN OR IN CONNECTION WITH APPLICATIONS IN WHICH THE FAILURE OF THE PRODUCT OR SOFTWARE COULD CREATE A SITUATION IN WHICH PERSONAL INJURY OR DEATH MAY OCCUR, AND YOU ARE NOT GRANTED ANY RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ANY SUCH APPLICATIONS.
WARRANTY DISCLAIMER: THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO YOU "AS IS", AND YOU ASSUME THE ENTIRE RISK OF THEIR USE. ENOCEAN AND ITS SUPPLIERS MAKE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH YOU, AND ENOCEAN AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION.
No EnOcean distributors, agents or personnel are authorized to make any warranty inconsistent with this disclaimer.
LIMITATION OF LIABILITY: IN NO EVENT WILL ENOCEAN OR ITS SUPPLIERS BE LIABLE FOR LOSS OF DATA, LOST PROFITS, COST OF COVER, OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM USE OF THE SOFTWARE OR DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND REGARDLESS OF WHETHER ENOCEAN, ITS SUPPLIERS, OR AN AUTHORIZED DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ACKNOWLEDGE THAT THE PRICE PAID REFLECTS SUCH ALLOCATION OF RISK. ENOCEAN AND ITS SUPPLIERS BEAR NO LIABILITY FOR ANY PROGRAMS OR DATA STORED IN OR USED WITH THIS PRODUCT, INCLUDING THE COST OF RECOVERING SUCH PROGRAMS OR DATA.
GENERAL: This Agreement will be governed by the laws of the State of California without reference to conflicts of laws principles. This Agreement is the entire agreement held between us and supersedes any other communications or advertising with respect to the Software and Documentation. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The Software and Documentation were developed by private expense and are deemed to be “commercial computer software” and “commercial software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and Documentation by the U.S. Government shall be prohibited except to the extent expressly permitted by this License. Your use and distribution of the Software and Documentation may be governed by laws and regulations of the US, including, without limitation, those issued by the Department of Commerce and the Bureau of Export Administration, and you agree to comply fully with all such laws and regulations. Failure fully to comply with the License, and any breach by you will result in automatic termination hereof and EnOcean reserves all rights to all legal and equitable remedies for all damages resulting therefrom.