TSP API/SDK LICENSE AGREEMENT
THIS API/SDK LICENSE AGREEMENT (“Agreement”) IS A LEGAL AGREEMENT BETWEEN YOU AND THE APPLICABLE LICENSOR(S) (AS DEFINED BELOW). BY ELECTRONICALLY EXECUTING THIS AGREEMENT BELOW, AND ACCESSING AND USING THE INTEGRATION MATERIALS, YOU ARE ACCEPTING AND AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH SUCH ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OF RESIDENCE TO USE OR ACCESS THE INTEGRATION MATERIALS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD NOT ELECTRONICALLY EXECUTE THIS AGREEMENT BELOW, AND, IF YOU HAVE ALREADY EXECUTED THIS AGREEMENT, CEASE ACCESSING OR USING THE INTEGRATION MATERIALS.
This Agreement governs Licensee’s (as defined below) access and use of the Integration Materials. This Agreement gives Licensee specific legal rights, and Licensee may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. The disclaimers, exclusions and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of this Agreement may not apply to Licensee.
Licensor and Licensee are individually and collectively sometimes referred to herein as “Party” or “Parties.”
WHEREAS, each Licensor has developed certain application programming interface kits (API) and software development kits (SDK) to assist application developers in developing products that are compatible with such Licensor’s products; and
WHEREAS, Licensee wishes to license certain Licensor’s APIs and/or SDKs in order to develop and market products compatible with such Licensor’s products, and such Licensor is willing to grant such a license to Licensee in accordance with the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS As used in this Agreement, these terms shall have the following definitions:
1.1 “Alliance Integrator” means a Licensee that (a) is noted by Licensor as an Alliance Integrator on the Licensee’s profile page within the Portal (as defined below), and (b) resells, services, configures or installs Licensor Products.
1.2 “Alliance Partner” means a Licensee that (a) is noted by Licensor as an Alliance Partner on the Licensee’s profile page within the Portal , and (b) is an end-user of Licensor Products.
1.3 “Connected Products” means (a) with respect to a Licensee that is not an Alliance Integrator or Alliance Partner, any products manufactured or marketed by Licensee which offer functionality substantially different than the functionality offered by the applicable Licensor Products, and which Licensee is integrating with the Licensor Product pursuant to this Agreement, and (b) with respect to a Licensee that is an Alliance Integrator or an Alliance Partner, any products manufactured or marketed by such Licensee or by a third party which offer functionality substantially different than the functionality offered by the Licensor Products, and which Licensee is integrating with the Licensor Product pursuant to this Agreement.
1.4 “Customer” shall mean a person or entity that acquires an object code version of an Integration Driver, whether directly from Licensee or through one of Licensee’s distributors or resellers, either for its own use, or, in the case of a distributor or reseller, for resale or distribution to end users.
1.5 “Integrated Front End” means any product, program or system (including those provided on a service basis) containing an end user interface that provides for the usage or control of both access control and video surveillance systems or devices. For avoidance of doubt, a physical security information management system (PSIM) shall not be deemed to be an Integrated Front End.
1.6 “Integration Driver” means the client and server portions of a software application developed hereunder using the Integration Materials that enable the management and control of the Connected Products by a platform distributed or sold by Licensor, and which may include object code versions of files included in the Integration Materials that permit communication between the relevant Licensor Product and another device and are marked with a “.dll”, “.lib”, “.so”, “.dylib” or equivalent file extension (“Library Files”). Said Integration Driver shall satisfy Licensor’s requirements provided by Licensor from time to time including, without limitation, metering requirements.
1.7 “Integration Materials” means a Licensor’s proprietary information and materials, including software and documentation, included in the applicable application programming interface kit or software development kit indicated on partner portal profile page, including without limitation any updates and revisions that Licensor may make available from time-to-time, in its sole discretion.
1.8 “Intellectual Property” means technical information, data and processes whether tangible or intangible, including without limitation any and all techniques, discoveries, inventions, descriptions, net lists, know-how, inventor certificates, trade secrets, designs, drawings, specifications, schematics, software programs (including source and object codes), microcode, methods of production, communications protocols and any other proprietary information, and any intellectual property rights in the foregoing, including without limitation copyrights, mask works or application for mask works, patents or patent applications (including any extension, reissue or renewal patents), applications for copyright registrations, trade secret and confidential information rights, other than any trademark, trade dress, trade name or service name rights or similar rights of either Party.
1.9 “Licensee” means (a) you, individually, if you are entering in to this Agreement on your own behalf, or (b) the entity you represent if you are entering in to this Agreement on behalf of such entity.
1.10 “Licensee Background Intellectual Property” means all Intellectual Property owned by Licensee which is used or incorporated into, or is used in the development or manufacture of, the Integration Driver.
1.11 “License Fees” shall mean the amounts payable by Licensee pursuant to Section 3 hereof, if applicable, for the licenses granted pursuant to this Agreement.
1.12 “Licensor” means:
(a) With respect to Integration Materials for American Dynamics, Kantech, Software House, and/or Proximex products, Sensormatic Electronics, LLC, with a principal place of business at 6 Technology Park Drive, Westford MA 01886 (“Sensormatic”);
(b) With respect to Integration Materials for DSC products, Tyco Safety Products Canada, Ltd., with a principal place of business at 3301 Langstaff Road Vaughan, ON L4K 4L2, Canada (“TSP Canada”); and
(c) With respect to Integration Materials for Exacq Products, Exacq Technologies, Inc., with a principal place of business at 11955 Exit 5 Parkway, Fishers, IN 46037 (“Exacq”).
1.13 “Licensor Products” means the applicable product(s) of the relevant Licensor with respect to which Integration Materials are being licensed pursuant to this Agreement.
1.14 “Licensor Background Intellectual Property” means all Intellectual Property owned by the applicable Licensor which is used or incorporated into, or is used in the development or manufacture of, the applicable Integration Materials and/or Licensor Products.
1.15 “Licensor Source Code” means those portions of the Integration Materials that are provided to Licensee in source code format, if any.
1.16 “Portal” means the online Connected Partner Program portal pursuant to which Licensee has registered to be a Connected Partner of Licensor(s), and is being granted access to the applicable Integration Materials pursuant to this Agreement.
1.17 “Term” means the Initial Term and any Renewal Terms.
2. LICENSE RIGHTS
2.1 License Rights and Restrictions. Each Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, world-wide license during the Term to:
(a) Use the relevant Integration Materials solely for Licensee’s internal development of an Integration Driver to enable the Connected Products to interface with the corresponding Licensor Products;
(b) Following successful completion of any required Testing in accordance with Section 2.2, market and distribute machine readable object code versions of the Integration Driver solely to the extent required to enable interoperability between the Connected Product and the corresponding Licensor Products; and
(c) Use the relevant Integration Materials internally for support and maintenance of the Integration Driver.
Licensee acknowledges that the relevant Licensor is the sole and exclusive owner of all right, title and interest in and to the Integration Materials. Except as explicitly set forth in this Section 2, nothing contained in this Agreement transfers to Licensee any license or right in any Intellectual Property of any Licensor. Licensee may use any Licensor Source Code solely for the internal development and support of the Integration Driver under this Agreement, and subject to the confidentiality obligations of this Agreement. Licensee will not use the Licensor Source Code for any other purpose and will not disclose Licensor Source Code to any Customer or other third party. Without limiting the generality of the foregoing, Licensee shall not use the Integration Materials or Licensor Source Code portions thereof to develop any software or product that is substantially similar to or is competitive with any Licensor Products.
2.2 Development and Testing of Integration Driver.
(a) Licensee shall be solely responsible for developing the Integration Driver at its sole expense.
(b) Select Integration Drivers are subject to integration testing and approval by the relevant Licensor (“Testing”) prior to any distribution or commercial release thereof. Refer to Exhibit A for applicable Testing requirements.
(c) If applicable, the Testing process and requirements shall be communicated to Licensee by Licensor. Licensee shall be responsible for all costs associated with Testing and any modifications necessary to meet the Testing criteria, and Licensee may not distribute the Integration Driver(s) until Testing is complete. Testing shall not be complete until Licensee receives written confirmation of Licensor’s successful completion of Testing. Licensee shall resubmit the Integration Driver and the associated Connected Products for re-Testing no less than fifteen (15) days after (1) Licensee modifies the Integration Driver(s) or Licensee’s use of Integration Materials, or (2) Licensor provides to Licensee any modifications, updates or enhancements to the Integration Materials. Failure by Licensee to maintain current Testing confirmation from Licensor is cause for immediate termination of this Agreement.
(d) Licensor shall have no liability or responsibility whatsoever with respect to such Testing. Licensee shall not make any written or oral representations or warranties to any Customer or other third party with respect to any Testing, confirmation or the results thereof performed by Licensor.
2.3 Additional Restrictions. Licensee shall not sell, sublicense or otherwise distribute any of the Integration Materials, except for object code versions of Library Files as reasonably required for the Integration Driver.
2.4 Integration Restrictions. The use of any Integration Materials in an integrated offering shall be limited to creating Integration Drivers with the relevant Licensor Product(s); provided that such Integration Drivers shall not, directly or indirectly, provide for, enable or otherwise facilitate the use of an Integrated Front End other than that provided by the applicable Licensor Products to (i) control, take action, acknowledge, modify or configure or otherwise manipulate any Licensor Products objects, including but not limited to doors, inputs, outputs, events, personnel, credentials, cameras or recorders for its products, or (ii) allow or enable administrative functionality from a non-Licensor Product’s GUI / front end software or other Licensee software or products covered by Licensor Product’s administrative clients, other than accepting information outputs from Licensor Products in a read-only fashion.
2.5 Illustra camera API integration: If Licensee is a Video Management System (VMS) or Network Video Recorder (NVR) manufacturer and is developing a VMS or NVR integration with Licensor Products, Licensee agrees to license the Illustra API Integration Material as indicated on partner portal profile page and develop and release, within six months of the Effective Date , an API integration that allows full functionality of the applicable Licensor Products (i.e., the Illustra Cameras) to be integrated with the applicable Licensee’s products. Licensor reserves the right to test such additional API integration for integration functionality and performance. Such additional API integration shall be subject to all terms and conditions of this Agreement to the same extent as the other API integration created using the Integration Materials, including, without limitation, Licensee’s obligations with respect to the distribution and support of such additional API integration.
2.6 Customer Terms and Conditions. Should Licensee offer any warranties to the Customers relating to the Integration Driver(s) or the Connected Products, Licensee shall be solely responsible for such warranties.
2.7 Use of Open Source. Licensee shall not use any Open Source Software with any Integration Materials in a manner that would cause any portion of the Integration Materials or other software or firmware included in the Licensor Products to become subject to the terms of any license for such Open Source Software or create any obligation on the part of any Licensor (i) to make any source code or object code available to third parties or (ii) to license, disclose or otherwise make available to third parties any proprietary software, data or other information, or any associated intellectual property. Nothing herein shall authorize or permit Licensee to, and Licensee agrees not to, disclose or publish any Integration Materials, even if the failure to do so would result in Licensee’s breach of any Open Source Software license. As used herein, the term “Open Source Software” means any software, program, module, code, library, database, driver or similar component (or portion thereof) the use of which requires any contractual obligations by the user such as, without limitation, that software that is subject to, distributed, transmitted, licensed or otherwise made available under any of the following licenses: GNU General Public License, GNU Library or “Lesser” Public License, Berkeley Software Design (BSD) license, MIT license, Apache Software License, or any substantially similar license, or any license that has been approved by the Open Source Initiative, Free Software Foundation or similar group.
2.8 No Reverse Engineering. Licensee agrees that it shall not decompile, disassemble or reverse engineer the Integration Materials or any Licensor Background Intellectual Property.
2.9 Updates. In the event that Licensor releases a new version of the applicable Licensor Product (“New Version”), Licensee agrees to update the applicable Integration Driver within one hundred eighty days (180) of the release of such New Version, if such update is necessary to ensure that the Connected Product continues to interface with the New Version.
3. LICENSE FEES
3.1 License Fees. In exchange for the rights granted herein, Licensee shall pay to the relevant Licensor the License Fees set forth in the current pricelist , if applicable, which amounts shall be due and payable net 30 days following receipt of invoice from Licensor. Failure to timely pay the License Fees to Licensor shall be a material default of this Agreement entitling Licensor to terminate this Agreement in accordance with Section 10.2. Licensee shall owe interest on all amounts not timely paid to Licensor in an amount equal to the lesser of 1.5% per month or the highest amount permitted by applicable law.
3.2 Additional Fees. Except as expressly provided in Section 4, the License Fee does not cover support and maintenance, which is available for purchase separately on a system-by-system basis for post-sales technical support on installed systems. In addition, each Customer seeking to activate compatibility between the applicable Connected Product for which the Integration Driver was developed hereunder and Licensor Products will need to purchase one or more license keys from Licensor at Licensor’s then-current pricing, terms and conditions.
4. SUPPORT AND MAINTENANCE
4.1 Generally. Licensor shall provide engineering support and assistance to Licensee as specified in the current pricelist for the relevant Integration Materials. For avoidance of doubt, such engineering support and assistance shall not include technical support for the setup of testing or demonstration of Tyco Products.
4.2 Localization. In the event localization of any Integration Driver(s) is necessary, Licensee shall (a) provide, at its expense, the services to complete such localization and language translations for such Integration Driver(s), including graphical user interfaces, or (b) compensate Licensor on a time and materials basis to complete such localization. In the event Licensor provides the localization services, Licensee shall provide all resource files necessary to complete the localization.
5. OWNERSHIP OF BACKGROUND INTELLECTUAL PROPERTY AND DEVELOPMENTS
5.1 Background Intellectual Property. All Background Intellectual Property and Intellectual Property owned by a Party as of the Effective Date of this Agreement, or which is developed by a Party subsequent to the Effective Date, shall remain the property of such Party and no license or other rights with respect to such Background Intellectual Property and Intellectual Property are granted to the other Party except as expressly set forth herein.
5.2 Ownership of Developments. Licensor shall retain all rights in the Integration Materials, the Licensor Products and all rights in any derivative works, improvements, modifications, enhancements thereto shall vest with Licensor. All rights in and title to the Licensee’s Products shall vest with the Licensee. With the exception of modifications or enhancement of the Integration Materials, all works, improvements, inventions, software and trade secrets developed and produced exclusively by Licensee as a result of the integration work carried out by Licensee for the integration of the Connected Products with the Licensor Products shall belong to the Licensee and Licensee shall own all rights in relation thereto.
5.3 Trademark Use. Licensee shall have no rights hereunder with respect to the use of any business name or trademark of Licensor in any manner in connection with the use of the Integration Materials or the distribution or use of Integration Driver(s). Notwithstanding the foregoing, during the Term, Licensee may advertise the fact that Licensee has developed an Integration Module for use with the relevant Licensor Products consistent with the other provisions of this Agreement. Licensor shall be permitted to use and include Licensee’s name and logo in Licensor’s marketing literature and web site relating to the Licensor Products.
6.1 Confidential Information. During the course of this Agreement, each Party may disclose to the other certain non-public or proprietary information or materials relating to a Party’s products, technology, business or marketing and other confidential information and other trade secrets, as defined by applicable law (“Confidential Information”). Confidential Information does not include materials or information that: (i) is generally known by third parties as part of the public domain as a result of no act or omission of the receiving Party; (ii) was already independently known by the receiving Party prior to receiving it from the disclosing Party and was not received from a third party in breach of any obligation of confidentiality; (iii) was independently developed by the receiving Party without reference to or reliance on the disclosing party’s Confidential Information; or (iv) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the receiving Party promptly notifies the disclosing Party of the pending disclosure in writing so that the disclosing Party may attempt to obtain a protective order or otherwise protect the confidentiality of the Confidential Information. The Integration Materials and the terms of this Agreement shall be the Confidential Information of Licensor.
6.2 Protection of Confidential Information. Each Party will protect the confidentiality of all Confidential Information received from the other Party with the same degree of care as it uses to protect its own Confidential Information, but in no event less than a reasonable degree of care. Both Parties will use or disclose the other Party’s Confidential Information only for the purposes of this Agreement. Each Party will have the right under this Section to permit disclosure of Confidential Information to its affiliates, employees, subcontractors or authorized representatives who have a need to know the Confidential Information in connection with the purposes of this Agreement (“Additional Recipients”), provided: (1) Additional Recipients of the Confidential Information have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein; and (2) each Party remains liable to the other Party for breaches of its respective Additional Recipients’ unauthorized disclosure. Without limiting the generality of the foregoing, in the event Licensee is owned by or affiliated with a competitor of Licensor, or of the parent or any affiliates of Licensor, Licensee agrees not to disclose any Confidential Information of Licensor to any employee, officer or agent of such competitor.
6.3 Equitable Remedy. Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
6.4 Return. Except for the modified Integration Drivers, upon the disclosing Party’s request or upon any termination or expiration of this Agreement, the receiving Party will promptly return to the disclosing Party or destroy, at the disclosing Party’s option, all tangible items containing or consisting of the disclosing Party’s Confidential Information, except where such return or destruction would impair the receiving Party’s rights under this Agreement.
7.1 Indemnity by Licensee. Licensee shall defend, indemnify and hold harmless each Licensor, its affiliates and each of their respective employees, directors, officers, and successors and permitted assigns, from and against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) (collectively “Expenses”) relating to third party claims or allegations arising from: (i) Licensee's use of the Integration Materials; (ii) allegations that any Integration Driver or Connected Product infringes any copyright, trademark, trade secret, trade dress, patent or other intellectual property right of any person or defames any person or violates their rights of publicity or privacy; (iii) the development, sale or other distribution of, operation, maintenance, use and contents of any Integration Driver or Connected Product; and (iii) Licensee's breach or violation of any terms or conditions of this Agreement.
7.2 Indemnity by Licensor. Each Licensor shall severally but not jointly defend, indemnify and hold harmless Licensee, its affiliates and each of their respective employees, directors, officers, and successors and permitted assigns, from and against any and all Expenses relating to third party claims to the extent arising from the infringement of any United States patent, but not any patent of any other country (“Infringement Claim”) by the Integration Materials of such Licensor. If any Integration Materials become the subject of an Infringement Claim, or Licensor reasonably believes use of its Integration Materials may become the subject of an Infringement Claim, such Licensor may, at its own expense and option: (i) procure for Licensee the right to continue use of such Integration Materials with no payment of additional royalties; (ii) replace or modify such Integration Materials; or (iii) refund to Licensee the License Fees paid for such Integration Materials (if any), in which case Licensee will return the Integration Materials to Licensor and cease all use of it. Licensor will have no defense or indemnity obligation for any Infringement Claim based on: (x) Integration Materials that have been modified other than by Licensor; (y) Integration Materials that have been modified by Licensor in accordance with Licensee-provided specifications or instructions; or (z) use or combination of Integration Materials with products of a third party. The foregoing will be Licensor's sole liability, and Licensee's exclusive remedy, in the event of any Infringement Claim.
7.3 Indemnification Procedure. The indemnified Party or its relevant affiliate (each, an “Indemnitee”) shall promptly notify the indemnifying Party (“Indemnitor”) of any third party claim for which Indemnitee is entitled to indemnification from Indemnitor pursuant to this Section 7 (“Indemnified Claims”). Any delay or failure to provide such prompt notice shall relieve Indemnitor of liability for indemnification of such Indemnified Claim hereunder only to the extent (if any) that Indemnitor is prejudiced by such delay or failure. The Indemnitee shall provide Indemnitor with any assistance and cooperation reasonably requested by Indemnitor in writing to defend the Indemnified Claim. Indemnitor shall have sole control over the defense and settlement of each Indemnified Claim using counsel reasonably satisfactory to the Indemnitee, except that Indemnitor shall not settle any Indemnified Claim without first obtaining the Indemnitee’s prior written consent unless such settlement would not reasonably be expected to have an adverse effect on Indemnitee.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual Warranties. Each Party represents, warrants and covenants to the other that (i) it has the authority to enter into this Agreement and to grant the rights and licenses provided herein, and that by entering into this Agreement, such Party is not in violation of any previous agreement between such Party and any third party; and (ii) it will comply with all laws, regulations, reasonable practices and standards applicable to the obligations assumed under this Agreement.
8.2 Licensee Warranties. Licensee represents, warrants and covenants to each Licensor that:
(a) Licensee is not currently developing and will not develop during the Term of this Agreement any products or Intellectual Property substantially similar to or competitive with the Integration Materials or the relevant Licensor Products;
(b) Licensee has sufficient development resources and experience in software development for security system applications to complete the development of the Integration Driver(s) in a timely manner; and
(c) Licensee shall conduct its business with respect to the Integration Driver(s) in a professional, businesslike manner that will reflect favorably on Licensor and its products, and not engage in deceptive, fraudulent, misleading, illegal or unethical business practices, whether with respect to the Integration Driver(s) or otherwise.
8.3 Limited Warranty. Each Licensor warrants, severally but not jointly, that its Integration Materials will, for a period of twelve (12) months from the date of delivery to Licensee (the “Warranty Period”), substantially perform in accordance with its then current documentation when operated in the indicated operating environment. During the Warranty Period, Licensor’s sole obligation under this warranty will be to, at no cost, make all necessary repairs and replacements to maintain the Integration Materials in the condition warranted during the Warranty Period or, in Licensor’s sole discretion, to refund the amount paid by Licensee for such Integration Materials. Such warranty shall apply and be enforceable only by Licensee. Where recurrent defects occur, both Parties commit to performing root cause analysis to identify the source of the problem. No warranties shall apply to defects caused by improper handling contrary to Licensor’s written instructions that are consistent with the documentation, or due to combination of the Integration Materials with third party hardware or software products, other than those referenced in the documentation or that are compatible with the standards identified in the documentation.
8.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3, THE INTEGRATION MATERIALS ARE PROVIDED TO LICENSEE “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3, EACH LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE/NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE INTEGRATION MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE INTEGRATION MATERIALS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR LICENSOR’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES PROVIDED HEREIN. LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER AS A RESULT OF INTEGRATION TESTING OF LICENSEE’S PRODUCTS, AND/OR NOTIFICATION OF SUCCESSFUL COMPLETION OF TESTING BY LICENSOR. 9. LIMITATION OF LIABILITY. EXCEPT FOR LICENSEE’S BREACH OF SECTION 2 (LICENSE RIGHTS), 6 (CONFIDENTIALITY), OR 7 (INDEMNIFICATION), OR EITHER PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY, THEIR EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS SHALL BE LIABLE UNDER THIS AGREEMENT IN ANY WAY WHATSOEVER, FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS REVENUE, LOST BUSINESS, FAILURE TO REALIZE EXPECTED SAVINGS, LOST DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR EITHER PARTY, THEIR EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LICENSEE’S BREACH OF SECTION 2 (LICENSE RIGHTS), 6 (CONFIDENTIALITY), OR 7 (INDEMNIFICATION), OR EITHER PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY HEREUNDER EXCEED THE AMOUNTS PAID BY LICENSEE TO THE APPLICABLE LICENSOR UNDER THIS AGREEMENT.
10. TERM AND TERMINATION
10.1 Term. Unless otherwise terminated in accordance with the provisions herein, this Agreement shall remain in effect for a period of one (1) year from the Effective Date (the “Initial Term”). Upon expiration of the Initial Term and each Renewal Term thereafter, this Agreement will be automatically renewed for an additional one (1) year term (“Renewal Term”) unless terminated by either Party upon ninety (90) days’ notice prior to the expiration of the Initial Term or any Renewal Term, as applicable.
10.2 Termination. Either Party may terminate this Agreement if:
(a) the other Party breaches any material term of this Agreement, and, fails to remedy such breach within thirty (30) days of receiving notice to do so by the non-defaulting Party;
(b) the other Party seeks protection, either voluntarily or involuntarily, in a proceeding pursuant to the federal bankruptcy laws that is not dismissed within 120 days, makes an assignment for the benefit of its creditors, or seeks any arrangement or compromise with its creditors under any statute or otherwise; or
(c) the other Party is the subject of a liquidation (other than pursuant to a bankruptcy proceeding) or a dissolution or cessation to do business as a going concern.
10.3 Survival. The following provisions shall survive the termination of expiration of this Agreement: Sections 5.1, 5.2, 6, 7, 8.4, 9, 10.3 and 11.
11.1 Several Agreements. Except as otherwise expressly set forth herein, this Agreement shall constitute a separate agreement between Licensee and each Licensor that provides Integration Materials hereunder (i.e., Sensormatic, TSP Canada and/or Exacq), and the liability of each Licensor under this Agreement shall be several and not joint. Each Licensor shall bill Licensee separately for the License Fees for the applicable Integration Materials licensed by such Licensor. Each Licensor shall only be liable for those obligations expressly set forth in this Agreement with respect to the Integration Materials of such Licensor licensed hereunder. In no event will any Licensor be liable for any of the obligations or liabilities of any other Licensor pursuant to this Agreement.
11.2 Assignment. This Agreement, and the rights, licenses and obligations of Licensee under this Agreement, are not assignable or transferable by Licensee without the prior written consent of Licensor, and any purported assignment thereof by Licensee shall be null and void. Any transfer or sale of all or substantially all of the assets of Licensee, or of a majority of the capital stock of Licensee entitled to vote in the election of directors, whether by sale, merger, operation of law or otherwise, shall be considered an assignment hereunder. Licensee obligations hereunder shall run in favor of Licensor’s successors, assigns or other legal representatives.
11.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.
11.4 Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business day after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in each case, with confirmation of delivery) to the address of such Party set forth below (or to such other address as such Party shall have specified in a written notice given to the other Party hereto):
If to Licensor: Director of Product Management @ email@example.com 6 Technology Drive Park Westford, MA 01886
If to Licensee: To Contact Person/Address set forth in Licensee Profile on the Portal
11.5 Severability. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement shall be held unenforceable by any court of competent jurisdiction, it shall be severed from this Agreement and the remaining provisions shall remain in full force and effect.
11.6 Amendments. This Agreement shall not be amended or modified except in writing signed by hand in ink by the Parties hereto. No course of dealing or usage of trade by or between the Parties shall be deemed to effect any such amendment or modification.
11.7 Waivers. Any consent by any Party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, or a waiver of any other, different or subsequent breach.
11.8 Force Majeure. Neither Party shall be deemed to be in default of any provision of this Agreement for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God. Each Party will use reasonable efforts to anticipate such failures and to devise means to eliminate or minimize them, provided that if a failure continues for more than sixty (60) days, either Party may terminate this Agreement immediately upon written notice.
11.9 Relationship. Neither Licensee nor Licensor shall represent that its relationship with respect to the other Party is other than as an independent contractor. Nothing in this Agreement shall be construed to create any agency, joint venture, partnership or similar arrangement between the Parties.
11.10 Entire Agreement; Governing Terms. This Agreement constitutes the entire understanding and agreement between the Parties relating to the subject matter hereof and supersedes and cancels all previous agreements, negotiations, commitments and representations in respect thereto and may not be released, discharged, abandoned, changed or modified in any manner, except by an instrument in writing of concurrent or subsequent date signed by a duly authorized representative of each of the Parties hereto.
11.11 Counterparts. This Agreement may be executed in counterparts and by facsimile, each of which will constitute an original and all of which taken together will constitute one and the same instrument.
|Effective: November 17, 2010|
|PLEASE READ THESE TERMS AND CONDITIONS OF USE (“TERMS”) CAREFULLY. BY ACCESSING THIS WEBSITE AND ANY PAGES OR MATERIALS CONTAINED IN THIS WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS SET FORTH BELOW. IF YOU DO NOT AGREE TO ALL OF THE TERMS SET FORTH BELOW, PLEASE DO NOT ACCESS THIS WEBSITE, OR ANY ASSOCIATED PAGES OR MATERIALS.|
|This Website (the “Site”) is owned and operated by Sensormatic Electronics, LLC and its affiliates (“Tyco Security Products”). The pages and materials contained on this Site are the property of Tyco Security Products or are owned by a third party and are used by Tyco Security Products under license. Tyco Security Products reserves the right, in its sole discretion, to change, modify, add or remove any portion of this Site or these Terms, in whole or in part, at any time and for any reason. Changes to these Terms will be effective when posted. You agree to review these Terms periodically to be aware of any changes. Your continued use of this Site after any changes to the Terms will be considered acceptance of those changes. These Terms govern your use of this Site. In the event that you do not comply with these Terms, Tyco Security Products may, its sole discretion and without notice, block or restrict your access to this Site and/or pursue legal action against you for any alleged or actual violation of these Terms or governing law.|
|Tyco Security Products grants you a non-exclusive, non-transferable, limited right to access, use and display this Site and the materials thereon; provided, however, that you comply with these Terms. You agree not to disrupt, interrupt or attempt to interrupt the operation of the site in any way. Tyco Security Products authorizes you to view and download the information ("Materials") at this Site only for your personal, non-commercial use. This authorization is not a transfer of title in the Materials or copies of the Materials and is subject to the following restrictions:
You agree to abide by all additional restrictions displayed on the Site as it may be updated from time to time. This Site, including all Materials, is copyrighted and protected by worldwide copyright laws and treaty provisions. You agree not to change or delete any proprietary notice from materials downloaded from the Site. You agree to comply with all trademark, copyright and other laws worldwide in your use of this Site and to prevent any unauthorized copying of the materials and information contained on this Site. Except as expressly provided herein, Tyco Security Products does not grant any express or implied right to you under any patents, trademarks, copyrights or trade secret information.
|LINKING TO THE SITE|
If you link to Tyco Security Products' Site, you agree that you:
|TYCO SECURITY PRODUCTS CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THIS SITE WILL BE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA AND OUTPUT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE.
THE MATERIALS AND INFORMATION CONTAINED ON THIS SITE MAY CONTAIN TECHNICAL INACCURACIES AND/OR TYPOGRAPHICAL ERRORS. TYCO SECURITY PRODUCTS DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE MATERIALS OR THE RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED OR DISTRIBUTED THROUGH THE SITE. YOU ACKNOWLEDGE THAT ANY RELIANCE ON ANY SUCH OPINION, ADVICE, STATEMENT, MEMORANDUM OR INFORMATION SHALL BE AT YOUR SOLE RISK. TYCO SECURITY PRODUCTS RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THE SITE. TYCO SECURITY PRODUCTS MAY MAKE ANY OTHER CHANGES TO THE SITE, THE MATERIALS AND THE PRODUCTS, PROGRAMS, SERVICES OR PRICES (IF ANY) DESCRIBED IN THE SITE AT ANY TIME WITHOUT NOTICE.
THIS SITE AND THE INFORMATION AND MATERIALS ON THE SITE ARE PROVIDED “AS IS” AND TYCO SECURITY PRODUCTS DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, OR ENDORSEMENTS WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH REGARD TO THE SITE, ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH THE SITE, AND TYCO SECURITY PRODUCTS SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
|INDEMNITY AND LIMITATIONS OF DAMAGES|
|You agree to indemnify, defend and hold harmless Tyco Security Products, its affiliates, and its and its affiliates respective officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Site against any and all losses, expenses, damages and costs, including reasonable attorneys’ fees, incurred in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third party that your use of the Site violates these Terms, any applicable law or regulation, or the rights of any third party.
IN NO EVENT SHALL TYCO SECURITY PRODUCTS, ITS AFFILIATES OR ANY OF ITS OR ITS AFFILIATES RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, SUBSIDIARIES OR EMPLOYEES BE LIABLE TO ANY ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM) THAT ARE RELATED TO THE USE OF, OR THE INABILITY TO USE, THE CONTENT, MATERIALS, AND FUNCTIONS OF THE SITE OR ANY LINKED WEBSITE, EVEN IF TYCO SECURITY PRODUCTS OR SUCH OTHER PARTY IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
|INFORMATION PROVIDED BY YOU|
|INTERNATIONAL USERS AND GOVERNING LAW|
|This Site is operated and administered from within the United States of America (“U.S.”). If you access this Site from a location outside of the U.S., you are responsible for compliance with all local laws. Use of this Site shall be governed by all applicable Federal laws of the U.S. and the laws of the State of Florida, without giving effect to its conflict of laws provisions. You agree to submit to the jurisdiction of the courts located in the State of Florida for the resolution of all disputes arising from or related to these Terms and/or your use of the Site.
|These Terms constitute the entire agreement between Tyco Security Products and you (the “Agreement”) with respect to your use of the Site. Any cause of action you may have with respect to your use of the Site must be commenced within one (1) year after the claim or cause of action arises. If for any reason a court of competent jurisdiction finds any provision of the Terms, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.|
|>The trademarks, trade names, logos, service marks, trade dress and products (collectively the “Trademarks”) displayed on the Site are registered and unregistered Trademarks of Tyco Security Products and others. The trademarks, trade names, logos, service marks, trade dress and products in this Site are protected in the United States and internationally.
Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of Tyco Security Products or such third party that may own the Trademarks displayed on the Site. Your use of the Trademarks displayed on the Site, or any other content on the Site, except as provided in these Terms, is strictly prohibited. You are also advised that Tyco Security Products will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
The materials of this Site are protected by Copyright and Trademark Laws of the U.S. and other countries and are owned by, or licensed to Tyco Security Products. All content of this Site is owned or controlled by Tyco Security Products. You may download content only for your personal use for non-commercial purposes but no modification or further reproduction of the content is permitted. The contents of the Site, including any images, text, executable code, and layout design may not be distributed, reproduced, publicly displayed, downloaded, modified, reused, re-posted, or otherwise used except as provided herein without the express prior written permission of the Tyco Security Products Legal Department.
Tyco Security Products maintains this Site for your personal information, education and communication. Please feel free to browse the Site. You may download material displayed on the Site for personal, noncommercial use only provided you also retain all copyright and other proprietary notices contained on the materials. You may not, for any reason, distribute, modify, duplicate, transmit, reuse, re-post or use the content of the Site for public or commercial purposes, including the text, images, audio and video without Tyco Security Products’ prior written consent.
Copyright in the pages of this website and in the screens displaying the pages, and in the material contained therein and in their arrangement, is owned by Tyco Security Products, and/or its affiliates, unless otherwise indicated.
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