This Echelon Utility Software License Agreement ("Agreement") is entered into between you ("You" or "Your") and Echelon Corporation ("Echelon") with respect to your use of the Echelon Utility Software made available for download by Echelon (“Software”). If you are entering into this Agreement on behalf of a company or other legal entity, (a) you represent that you have the right to bind them to this Agreement, and (b) the reference to You and Your refers to that company or entity. YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
In consideration of Your agreement to the terms of this Agreement, Echelon grants You a non-exclusive, non-sublicensable, revocable, limited license (“License”) to use the Software in its object code form and solely in connection with commissioning, configuring, testing, monitoring or other internal activities with respect to an Echelon device purchased by You and for which the Software is provided (“Echelon Device”) (these activities are referenced as the “Purpose”).
The License permits you to:
(a)download, install and use the Software solely for the Purpose; and
(b)copy the documentation included with the Software ("Documentation") for internal reference use in connection with the Purpose, provided that You reproduce, unaltered, all proprietary notices on or in the copy.
IV.RESTRICTIONS AND INDEMNITY
The License shall not permit You or allow You to permit others to:
(a)use the Software or Documentation for any purpose other than commissioning, configuring, testing, monitoring and other internal activities with respect to an Echelon Device;
(b)copy the Software other than making a reasonable number of copies for archival purposes or as necessary to use the Software;
(c)modify, translate, create derivative works of, reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Software, including without limitation any such mechanism used to restrict or control the functionality of the Software, or (ii) to derive the source code or the underlying ideas, algorithms, structure or organization of the Software (except to the extent that such activities may not be prohibited under applicable law);
(d)permit any third party to access or use the Software or Documentation; provided, however, that You are permitted to allow third party contractors (“Contractors”) to use the Software and Documentation in accordance with the terms of Section III at Your place of business or that of the Contractor solely for the Purpose, subject to the Contractor’s written agreement to comply with the restrictions under this Section IV and the Confidentiality obligations of Section VI;
(e)remove or modify any proprietary legends or notices contained on or in the Software or Documentation; or
(f)resell, distribute, rent, loan, lease, transfer or grant any rights in the Software or the Documentation in any form to any person without the prior written consent of Echelon.
The License is not a sale. Title and copyrights to the Software, Documentation, and any copy made by You remain with Echelon or its suppliers. Unauthorized copying of the Software or Documentation, or failure to comply with this Section IV, will result in automatic termination of the License and will make available to Echelon and its suppliers other legal remedies.
You agree to indemnify, to the fullest extent permitted by law, Echelon and its directors, officers, agents, employees and suppliers (“Indemnitees”), for any third party claims, actions, proceedings, liabilities, loss, damage, cost, or expenses (including, without limitation, attorneys' fees), arising out of or in connection with Your use of the Software or Documentation, your violation of applicable law or your breach of this Agreement. Echelon reserves the right, at your expense to assume the exclusive defense and control of any matter for which you are required to indemnify Echelon, and you agree to cooperate with the defense of such claims. You agree not to settle such matter without Echelon’s prior consent.
Unless earlier automatically terminated as provided in Section IV, the License will continue until terminated by either party in writing. Upon termination of the License for any reason You shall destroy all copies of the Software and Documentation.
The Software, including in its object code form, and any Documentation marked as "confidential" or "proprietary", together with any information provided to You by Echelon in connection with the License that a reasonable person would deem confidential given the nature of the information, constitutes "Confidential Information" of Echelon or its suppliers. You agree not to use any Confidential Information for any purpose not permitted by this Agreement, and that you will make such Confidential Information available only to Your employees that require access to such Confidential Information in connection with exercising Your rights under the License. You agree that you will protect such Confidential Information from unauthorized use, disclosure or access in the same manner as You protect your own confidential or proprietary information of a similar nature and with no less than reasonable care. Your obligations with respect to Confidential Information shall continue during the term of the License and for a period of five years after its termination.
VII.WARRANTY AND DISCLAIMER
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR GIVEN IN ANY COMMUNICATION WITH YOU. ECHELON AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY AND CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT, AND THEIR EQUIVALENTS. YOU ACKNOWLEDGE THAT ECHELON’S DISTRIBUTORS AND SALES REPRESENTATIVES ARE NOT AUTHORIZED TO PROVIDE ANY WARRANTIES IN ADDITION TO, OR IN CONFLICT WITH, THE PROVISIONS OF THIS SECTION.
VIII.LIMITATION OF LIABILITY
IN NO EVENT WILL ECHELON AND ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER (INCLUDING DAMAGES RESULTING FROM LOSS OR CORRUPTION OF DATA, LOST PROFITS, LOSS OF CONTRACTS AND COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES) ARISING FROM THE SUPPLY, USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION). THIS LIMITATION WILL APPLY EVEN IF ECHELON OR AN AUTHORIZED DISTRIBUTOR OR SALES REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IX.COMPLIANCE WITH LAWS
You agree to comply with all applicable laws and regulations in connection with your use of the Software, Documentation and Echelon Device. This includes, but is not limited to, export and re-export control laws and regulations of the United States and any other applicable jurisdiction (“Export Laws”). You covenant that You shall not—directly or indirectly—sell, export, re-export, transfer, divert, or otherwise dispose of any software, source code, or technology (including products derived from or based on such technology) received from Echelon under this Agreement to any country (or national thereof) subject to antiterrorism controls or U.S. embargo, or to any other person, entity, or destination prohibited by the laws or regulations of the United States, without obtaining prior authorization. You warrant that you are not prohibited under the Export Laws from downloading, installing or using the Software and Documentation. You agree to indemnify, to the fullest extent permitted by law, Echelon (and its officers, directors, employees, agents and suppliers) from and against any fines or penalties that may arise as a result of Your breach of this provision. This provision shall survive termination or expiration of this Agreement.
The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, 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.
This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods, but shall be governed by the laws of the State of California, including the Uniform Commercial Code as enacted in California, without reference to conflicts of laws principles. This Agreement is the entire agreement between us and supersedes any other communications or advertising with respect to the Software and Documentation. The waiver of a breach of any provision of this Agreement shall not be construed as a waiver of any other provision or any other breach. 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.
If You are acquiring the Software and Documentation on behalf of any part of the U.S. Government, the following provisions apply. The Software and Documentation were developed at private expense and 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, performance, display or disclosure of the Software 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.