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Kreuter Manufacturing Co., Inc., d/b/a KMC Controls, Inc.
End User License Agreement (“EULA”) for
WinControlTM, BACstage™, TotalControl™, KMC Connect™, KMC Connect Lite™, KMC Converge™, and KMC Commander™ Software
The above-referenced software products (and related documentation, collectively, the “Software”) are all products of Kreuter Manufacturing Co., Inc., d/b/a KMC Controls, Inc., New Paris, Indiana, USA.
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. KMC IS WILLING TO LICENSE THE SOFTWARE TO YOU AS THE INDIVIDUAL, THE ORGANIZATION, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE (REFERRED TO AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS EULA.
UPON THE EARLIEST OF THE DATE (A) YOU ARE INITIALLY ISSUED A SOFTWARE LICENSE KEY, WHETHER BY EMAIL, FROM KMC’S WEBSITE, ON A PRODUCT PACKAGE OR ON A HARD KEY (E.G., FLASH DRIVE); (B) YOU DOWNLOAD THE SOFTWARE FROM KMC’S WEBSITE, (B) , OR (C) THE SOFTWARE IS INSTALLED (THE FOREGOING REFERRED TO AS THE “EFFECTIVE DATE”) YOU AGREE TO THE TERMS AND CONDITIONS OF THIS EULA.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, DO NOT ATTEMPT TO DOWNLOAD OR INSTALL THE SOFTWARE, OR, IF INSTALLED, MAKE NO FURTHER USE OF THE SOFTWARE, AND NOTIFY IN WRITING KMC OR THE RESELLER FROM WHOM IT WAS ACQUIRED WITHIN THIRTY (30) DAYS OF PURCHASE, AND THE PURCHASE PRICE WILL BE REFUNDED.
1. Evaluation License.
This Section 1 applies to you only if you have agreed to a limited time Evaluation License (as defined below) of any of the Software. The provisions of only Sections 3-17 shall apply with full effect to this Evaluation License. All provisions of this EULA apply if you have not agreed to an Evaluation License.
You have accepted an evaluation period license for the Software. You shall have the right to use the Software in the operating environment identified by KMC and by a single user on a single designated computer solely for your own internal testing (the “Evaluation License”). No copies shall be made without KMC’s prior written consent. Your use of the Software is limited to evaluation purposes for a period (the “Evaluation Period”) of thirty (30) days subject to any extension of that Evaluation Period by KMC and as evidenced in writing. At the conclusion of the Evaluation Period you shall either (a) uninstall and delete all copies of the Software and return all copies to KMC or certify their complete deletion within your (and your customer’s) operating environment, or (b) you pay the appropriate purchase price, in which case KMC shall provide you with a license key or other instructions which shall enable you to utilize the full functionality of the Software. Issuance of the license key shall be deemed the Effective Date of this Evaluation License and you will then be subject to all of the terms of this EULA. IN CONNECTION WITH THIS EVALUATION LICENSE KMC PROVIDES THE SOFTWARE “AS-IS” WITHOUT WARRANTIES OF ANY KIND AND KMC SPECIFICALLY DISCLAIMS ALL IMPLIED, EXPRESS AND STATUTORY WARRANTIES INCLUDING THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NONINFRINGEMENT.
2. Grant of License.
The Software is owned by and is the property of KMC or its licensors and are protected by copyright and other intellectual property laws. Some licensors may be express or intended beneficiaries of this EULA. Subject to all of the terms and conditions of this EULA, KMC grants you a limited, non-exclusive, worldwide, non-transferable (other than as specified herein), non-sublicensable license to use the Software, but only in accordance with (i) the documentation, (ii) the restrictions contained herein and any restrictions on the applicable invoice, and (iii) the number of authorized users.
3. Permitted Use.
A. The Converge and KMC Commander Software products are licensed with the purchased hardware system as a single integrated product, and the Software for these two products may be installed only on the computers associated with the purchased system and may only be used as part of the system. The WinControl, BACstage, TotalControl, Connect and Connect Lite Software products may be installed only on the number of computers for which the Software is licensed and which meet KMC’s technical specifications.
B. You may use the Software only as installed on the computer or server for which the Software is licensed. In addition, you may install and use the Software on the computer, mobile device or server you use to monitor and operate the KMC building automation system in which the computers are connected.
C. You may:
(i) Use the Software on the quantity and type of computers indicated on KMC’s invoice. You may make that number of copies of the Software licensed to you by KMC.
(ii) Make one copy of the Software for archival purposes, or copy the Software onto the hard disk of your computer and retain the original for archival purposes.
(iii) Use the Software on a network, provided that you have a licensed copy of the Software for each computer that can access the Software over that network.
(iv) Make printed copies of electronic documentation for your internal use.
(v) Permanently transfer all of your rights under this EULA only as part of a sale or transfer of the system, provided you retain no copies, you transfer all of the Software programs (including all component parts, the media, any upgrades or backup copies and this License), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software.
D. You may not:
(i) For all Software other than KMC Commander, distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes, except as expressly permitted under this EULA; and, for KMC Commander, you may not do any of the foregoing in this paragraph without our prior written permission.
(ii) Reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover, modify or use the source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), or create derivative works from the Software (any such modifications shall automatically be owned by KMC upon creation).
(iii) Utilize any equipment, device, software, or other means designed to circumvent or remove any form of license key or copy protection used by KMC in connection with the Software, or use the Software together with any authorization code, license key, serial number, or other copy protection device not supplied by KMC or through an authorized distributor or reseller.
(iv) Use the Software to develop or facilitate development of a product which is competitive with any KMC product offerings.
(v) Post or otherwise publish electronic documentation of the Software, other than project submittals for access outside the licensed organization.
(vi) Use a later version of the Software than is provided in the email with the login credentials except as provided under the Warranty, unless you have purchased maintenance and update service or have otherwise separately acquired the right to use such later version.
(vii) Remove any product identification, proprietary, copyright or other notices contained in the Software.
(viii) Provide any license key or login information to a third party, other than to integrators or others authorized by us.
(ix) Use the Software or license keys in any manner not expressly authorized by this EULA.
E. Use of the Software is subject to our Privacy Policy (available at www.kmccontrols.com/privacy-policy), which is incorporated by reference herein.
4. Termination.
Without prejudice to any other rights, KMC may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must uninstall and delete all copies of the Software and all of its component parts.
5. Intellectual Property.
As between the parties, KMC and its licensors retains all right, title and interest, including without limitation all intellectual property rights, in and to: (a) the Software (including documentation); (b) any ideas, suggestions, or other feedback that you or your customers or end user requests, proposes, creates or authors relating to any of the foregoing and any and all improvements, modifications, translations and derivative works of any of the foregoing related to the Software or products provided by KMC (collectively, “Improvements”). You agree to and do hereby assign all intellectual property and other rights, title and interest in all Improvements to KMC and agree to provide KMC, at KMC’s expense, with any assistance required for KMC or its licensors, as applicable, to document, perfect and maintain its rights in the Improvements. All rights not specifically granted under this License are reserved by KMC Controls. Other than as permitted herein, you may not copy any printed materials accompanying the Software without our prior written permission.
6. Product Support.
Product support for the Software is provided by KMC or its Representatives. For product support, please first refer to the KMC Representative that installed the KMC system. Should you have any questions concerning this EULA or if you desire to contact KMC for any other reason, please refer to the address provided in the documentation for the system.
7. Warranty.
ALL SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTIES OF ANY KIND AND KMC SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, AND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, NON-INFRINGEMENT, OWNERSHIP OR QUIET ENJOYMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, ALL OF WHICH ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Virus Scanning.
KMC uses virus protection scanning software to scan the Software and to the best of KMC’s knowledge as of the installation date, the Software, when installed, does not contain or otherwise introduce any computer virus or any harmful or destructive code which could damage or harm your computers; however, KMC cannot guarantee that benign or harmful viruses or other malware will not enter your computers or systems.
9. Indemnification.
Subject to your compliance with the terms of this EULA, KMC shall indemnify and hold harmless you and your officers, directors, employees and agents from and against all third party claims, to the extent such claim alleges that the Software (in each case as provided by KMC) infringes any copyright, U.S. patent right, trade secret right, or other intellectual property right, provided, however, that you must comply with the following terms: KMC must have received from you: (i) prompt written notice of such claim (but in any event notice in sufficient time for KMC to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation by you. In the event that the Software is, or in KMC’s sole opinion is likely to be, enjoined or subject to a claim due to the type of infringement described in this section, KMC, at its option and expense, may (a) replace the Software with functionally equivalent non-infringing Software or (b) obtain a license for your continued use of the Software, or, if the foregoing alternatives are not reasonably available to KMC (c) terminate this EULA and refund a pro rata amount, as determined by KMC, of the purchase price of the Software. Notwithstanding the above, KMC shall have no liability indemnification obligation for any infringement claim which: (i) pertains to any Software that has been altered or modified without KMC’s prior written approval; (ii) is based on use of the Software in conjunction with any item not provided by KMC, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by KMC; (iii) pertains to any unauthorized use of the Software; (iv) pertains to an unsupported release of the Software; or, (v) pertains to any Open Source Software or other third party code provided with the Software. THIS SECTION SETS FORTH KMC’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10. Limitation on Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL KMC OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS, LOSS OF BUSINESS REVENUES, PROFITS OR INFORMATION, BUSINESS INTERRUPTION, LOSS, CORRUPTION OR MODIFICATION OF DATA, OR OTHER PECUNIARY LOSS, OR THE INABILITY TO USE THE SOFTWARE, ARISING OUT OF THIS EULA, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,. IN NO CASE SHALL KMC OR ITS LICENSORS’ TOTAL AGGREGATE LIABILITY UNDER THIS EULA, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE LESSER OF (A) THE PURCHASE PRICE ACTUALLY PAID BY YOU FOR THE PRODUCT AS INITIALLY PURCHASED (OR (B) LICENSES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. The disclaimers and limitations set forth above in this section will apply regardless of whether or not you accept the Software. The parties agree that the limitations specified in this section will survive any expiration or termination of this EULA and apply even if any limited remedy specified in this EULA is found to have failed of its essential purpose. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE LIMITATION OR EXCLUSION ABOVE MAY NOT APPLY TO YOU.
11. U.S. Government Restricted Rights.
RESTRICTED RIGHTS LEGEND. All KMC Software and documentation are commercial in nature. The Software and documentation are “Commercial Items”, as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 27.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable. KMC’s Software and documentation are licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA. The manufacturer is Kreuter Manufacturing Co., Inc. New Paris, Indiana, USA.
12. Export Compliance.
You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.
13. Third-Party Code.
The Software may contain or be provided with components subject to the terms and conditions of “open source” or freeware software licenses (“Open Source Software“). Licenses for open source are identified above. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this EULA with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
14. Assignment.
Neither this EULA, nor any of your rights or obligations hereunder may be assigned, transferred, conveyed or delegated (collectively referred to as “assigned”, or derivatives thereof), in whole or in part, or in any manner, including by contract, merger or operation of law, other than as expressly provided herein, without the prior written consent of KMC, which consent shall not be unreasonably withheld, and any attempted assignment or delegation without such consent shall be of no power or effect. For purposes of this paragraph, a change of control shall be deemed an assignment. Subject to the foregoing, this EULA shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
15. General.
This EULA is the entire agreement between you and KMC relating to the license and use of the Software. This EULA supersedes all prior KMC end user license agreements and versions thereof for the Software. This EULA may be amended only in writing signed by both parties. KMC may terminate this EULA upon your breach of any term contained herein. Upon termination, you shall cease use of, uninstall or render inoperable, and delete destroy all copies of the Software. The disclaimers of warranties and damages and limitations on liability shall survive termination. No provision of any purchase order or other business form employed by you will supersede the terms and conditions of this EULA, and any such document relating to this EULA shall be for administrative purposes only and shall have no legal effect. You and KMC are independent contractors with respect to one another. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. It is expressly agreed that any terms appearing on the face or reverse side of any invoice, quotation, purchase order, acknowledgment or confirmation that are different from or in addition to the terms provided in this EULA (including the applicable order form) shall not be binding on the parties, even if signed and returned. Waiver by a party of any default shall not be deemed a waiver of any similar, subsequent or other default. If a court of competent jurisdiction determines that any provision of this EULA is unenforceable, the remainder shall continue in full force and effect and the offending provision shall be enforced to the greatest extent possible to give effect to its original intent. KMC, its third party licensors and other providers reserve all rights in and to their respective trademarks, trade names, service marks and logos (“Marks”) and no right to use or reproduce such Marks is granted except in connection with the use of the Software or reproduction (where permitted) of the documentation.
16. Governing Law; Jurisdiction and Venue.
This EULA shall be governed by the laws of the State of Indiana without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction. In any legal action arising out of or relating to this EULA, the parties agree that the federal or state courts of Indiana shall have sole and exclusive jurisdiction.
17. Arbitration.
The exclusive means of resolving any dispute or claim arising out of or relating to this EULA (including any alleged breach thereof) or the Software shall be by binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration before a single arbitrator through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties, or, if no agreement is reached within ten (10) days of a request for agreement, then according to the rules (“Rules”) of the American Arbitration Association (“AAA”). The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Notwithstanding the foregoing, either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Software, disclosure of our confidential information or trade secrets, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in the dispute resolution process described above. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. If you or we pursue arbitration, the arbitration action must be initiated within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the relevant claim.
Contact Us.
Should you have any questions concerning this EULA, or if you desire to contact KMC for any reason, please email us info@kmccontrols.com or write to us at: Kreuter Manufacturing, Inc., 19476 Industrial Drive, New Paris, Indiana 46533-0518.