END USER LICENSE AGREEMENT
PLEASE, READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) VERY CAREFULLY BEFORE CLICKING AN “I AGREE” BUTTON, DOWNLOADING OR USING THINGSBOARD PROFESSIONAL EDITION IOT PLATFORM. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SOFTWARE
WHEREAS, the Licensor has developed the Software and is the owner of this Software;
WHEREAS, the Licensee intends to purchase a License and use the Software; and
WHEREAS, the Licensor is ready to provide such the License for usage of the Software under the terms and conditions set forth herein, the Parties, in consideration of the foregoing premises and realizing reciprocal obligations, contained in this Agreement, have agreed as follows:
In compliance with the terms and conditions of this End User License Agreement (hereinafter referred to as the “License agreement”/“Agreement”), ThingsBoard, Inc. (hereinafter referred to as the “Licensor”/“We”) hereby grants Licensee (hereinafter referred to as the “Licensee”/“You”) (hereinafter collectively referred to as “Parties”) a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive right to use the Software on the territory only for Licensee’s personal use in accordance with any documentation that accompanies the License and under the terms set forth herein (hereinafter referred to as the “License”). Herewith, under the territory must be understood a territory of the whole world. This Agreement cannot be understood as an agreement for sale in any way.
GENERAL USE CONDITIONS
For the purpose of this Agreement, under the meaning “Software” must be understood a ThingsBoard Professional Edition IoT Platform that enables rapid development, management and scaling of IoT projects as well as provide a possibility to: (i) provision and control devices; (ii) collect and visualize data from devices; (iii) analyze device data and trigger alarms; (iv) deliver device data to other systems; (v) enable use-case specific features using customizable rules and plugins. All specific features regarding the Software functionality can be found by the Licensee at: http://www.ithingsboard.com/docs.
Using the Software, the Licensee is obliged to adhere to the terms and conditions specified herein. Before the use of the Software on a fee basis, the Licensee may use the Software under a free trial short term License, the period of which is 10 (ten) days (hereinafter referred to as “Test period”).
The Licensee can purchase the Software License on the aws.amazon.com web-site. Herewith, the Licensee is obliged to adhere all demands, terms and rules placed on the aws.amazon.com web-site. For the purpose of this Agreement and in accordance with its terms and conditions, the Licensee may use the Software on Amazon servers on which the Software is available.
The Software within the current License covers a single operating system process. In a case, the Licensee intends to have multiple servers or containers with Software installed, each server requires purchase of a dedicated license.
Before purchasing and using the License, the Licensee must create and register an Account on the aws.amazon.com web-site.
Upon the Test period expiration, the Licensee, on its sole decision, is obliged either to fulfill its payment obligations under this Agreement or to stop using the Software.
The Licensee shall strictly comply with all laws, rules, and regulations applicable to the use of the Software. After the fulfillment of all payment obligations the Licensee may get access and use the Software in accordance with the terms and conditions stipulated herein.
The Licensee is entitled to use the Software the Licensee paid for, at its sole discretion with the purposes that are specified herein as well as with any other purposes contemplated by the Software functionality.
The Licensee is entitled to grant the right on access to the Software to its employees, clients and partners or any other individuals but only on the basis set forth herein. Herewith, the Licensee is obliged not to transfer the Software to the third parties, which are not formally authorized by the Licensee to the Software access.
The Licensee is obliged not to perform any actions regarding the Software, which can directly or indirectly breach Licensor’s rights and/or contribute the damages for the Licensor and/or for the third parties.
The Licensee independently bears all liability for the consequences that may arise as a result from the access to Software provided by the Licensee to its employees, clients, partners or other third parties.
The Licensee confirms that the Software may contain a code, which is able to deactivate the Software or suspend the access to the Software after termination or early termination of the License.
The Licensee has not any rights to: (i) modify, alter, tamper with, repair, or otherwise create derivative works of the Software; (ii) reverse engineer, disassemble, or decompile the Software or apply any other process or procedure to derive the source code of the Software; (iii) access or use the Software in a way intended to avoid incurring fees or exceeding usage limits or quotas; (iv) resell or sublicense the Software; (v) attempt to disable or circumvent any security mechanisms used by the Software; (vi) use the Software to perform a malicious activity; or (vii) upload or otherwise process any malicious content to or through the Software.
In the context of this Agreement, the “Confidential Information” shall mean an information designated as confidential or reasonably considered as confidential, including, but not limited to financial, advertising and operational information, information about commercial relations between the Licensor and the Licensee. Internal structure, constitution and the Software code is valuable commercial and confidential information, owned by the Licensor.
Each party of this Agreement shall keep the other party’s Confidential Information confidential by using a reasonable degree of care, but not less than the degree of care used to protect its own Confidential Information.
Each party is obliged not to disclose the other party’s Confidential Information to any third party without the other party’s prior written consent or except as required by law or use the other party’s Confidential Information for any purpose except performing this Agreement or furthering the relationship between the Parties. The Licensor is entitled to collect, keep and use the Confidential information of the Licensee with the purpose of fulfillment of the terms of this Agreement as well as for the Software improvement and development, if another is agreed by the Parties.
The information shall not be considered as confidential in case if such information: (i) is or becomes publicly known without breaching terms of this Agreement or any other similar obligation of confidentiality by the Licensee of any other third Party; (ii) was at Licensee’s disposal or became known before the moment of signing of this Agreement.
Within the current Agreement, the Licensee may provide the Licensor with both impersonal and personal information about itself with a purpose the Licensor to conduct analytical researches in various fields regarding the Software development and improvement as well as other purposes that could facilitate the Software use in future. In this case, such information may be provided by the Licensee only based on the Licensee’s consent.
For the purpose of this Agreement, the “Personal information” means an information or aggregate of information about You as an individual, which specifically can identify You. This data includes, but is not limited to, your surname, name, email address, photo.
We make all reasonable steps to safeguard and prevent disclosure of your Personal information. We try to use all advanced security practices and, whenever possible, keep them up to date, but we cannot guarantee that our security and security procedures will not contain any errors. We cannot guarantee that the transfer of your data will always be safe or that our security measures or security measures of our partners cannot be affected by the external factors, or that data cannot be damaged by the unlawful actions of third parties. In case of the termination or early termination of the Agreement, the Licensor is not obligated to keep any Licensee’s Confidential information and has a right to delete such information at sole discretion after the termination date.
INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
We reserve ownership of all intellectual property rights inherent in or relating to the Software, which include, but not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this Agreement. These rights are reserved by the international treaties and all other applicable legislative provisions regarding the intellectual property protection. The Software is not sold and is not alienated to the Licensee.
All rights for the Software are reserved by the Licensor except those, which are explicitly transferred to the Licensee as the end user of the Software under this Agreement.
While using the Software, the Licensee is entitled to upload a data which belongs the Licensee. Herewith, the Licensee represents and warrants that the Licensee owns all rights, title, and interests in and to its data and none of its data violates this Agreement, any applicable law or any third party’s intellectual property or other right.
The Licensee acknowledges and confirms that We may use the data, the intellectual property rights for which belong to the Licensee, with the purpose to improve or develop the Software functionality. We may disclose the Licensee’s data to provide the Software to You or to comply with any request of a governmental or regulatory body.
In a case of the termination or early termination of the Agreement, the Licensor is not obligated to keep any data the intellectual property rights which belong to the Licensee and has a right to delete such data at its sole discretion after the termination date.
The Licensee shall pay the License fee and all other reasonable fees where it is required. The final amount of the License fee shall be specified on the aws.amazon.com web-site while You are purchasing the Licensee. The License fee is non-refundable, regardless of any circumstances, unless other is agreed by the Parties.
The License fee is a gross amount, but it does not include any value added tax, use tax, sales tax or any other similar tax. Each party shall pay all taxes they must (including, but not limited to, taxes based upon its income) or levies imposed on them under applicable laws, regulations and tax treaties.
TERM AND TERMINATION
Under this Agreement, the License is deemed to be granted to the Licensee since the moment all corresponding payments are made (Inception date). Herewith, the term of the License is 1(one) year since the Inception date, unless other is agreed by the Parties.
The License may be withdrawn, and the Agreement may be terminated by the Licensor at any time if the Licensee breaches the terms of this Agreement or for other reasons, which may be determined by the Licensor as ones that violate the terms of this Agreement.
In a case the License is withdrawn, the Agreement is considered to be terminated since the date of notification of the Licensee about the withdrawal.
In a case of early termination of the Agreement, the License fee paid by Licensee for the Licensor’s benefit shall not be refunded to the Licensee.
Upon this Agreement termination, the Licensor agrees to immediately cease the Software use including the use of all accompanying documents.
Upon this Agreement termination (i) all your rights under this Agreement immediately are to be terminated and (ii) You remain responsible for all fees and charges You have incurred through the date of termination.
THE LICENSOR PROVIDES THE SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO. IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, AGREEMENT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE. LICENSOR’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY LICENSEE HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
LIABILITY AND INDEMNIFICATION
If the Licensee violates the Licensor’s intellectual property rights and/ or discloses the Licensor’s Confidential information, the Licensee is obliged to reimburse to the Licensor all arisen expenses and loses.
The Licensee independently bears the liability in a case of appeals of any third parties, whose rights and/or interests are violated in a result of use of the data uploaded by the Licensee while using the Software.
The Licensee is obliged to indemnify and hold harmless the Licensor, its representatives and partners from and against any damages, reasonable legal fees and costs finally awarded against the Licensor to the extent resulting from or for amounts paid by the Licensor to settle any third party claim concerning Licensee’s data or the combination of Licensee’s data with other applications, content or processes, including any claims involving alleged infringement or misappropriation of third-party rights by Licensee’s data or by the use, development, design, production, advertising or marketing of Licensee’s data.
The Licensor shall indemnify the Licensee from damages, reasonable legal fees, and costs finally awarded against the Licensee in a case when a third party asserts against the Licensee a claim that the Software infringes a third party’s intellectual property right. In any case, the Licensor shall not be obliged to defend or indemnify the Licensee if the third parties’ claims are based on any breach of this Agreement by the Licensee.
All issues arising out of or related to this Agreement shall be resolved in accordance with the laws of the United States. All disputes, arising from this Agreement shall be settled by the Parties by negotiating. In a case the Parties cannot manage to reach agreement on the appropriate dispute, it shall be submitted to the corresponding court within the United States. Each party hereby unconditionally agrees on the exclusive jurisdiction and the place of trial venue. Herewith, the Licensee hereby agrees to service of process in accordance with the rules of such court.
The Licensor will make all reasonable steps to provide You with a quality Software support when it is needed. Herewith, the Licensor will provide You a free of charge support with best effort to provide 48 hours first response time. The more quality Software support could be provided by the Licensor on fee basis if it additionally agreed by the Parties.
This Agreement represents the complete agreement regarding the License that is to be transferred by the Licensor to the Licensee and supersedes all prior agreements and representations between them. In a case any provision of this Agreement becomes or is declared by the court of the competent jurisdiction as illegal, unenforceable or void, this Agreement will be effective entirely without mentioned provision. After this Agreement is concluded, all prior agreements, correspondence, preliminary agreements, protocols of intent and any other written or oral appointments between the Parties on issues, in some manner regarding this Agreement, lose legal effect, but can be taking into consideration in case of interpretation of the terms of this Agreement.