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IMPORTANT - READ THIS END-USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE OPENING, DOWNLOADING, INSTALLING, ACCESSING, OR OTHERWISE USING THE SOFTWARE.
THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU AND TYCO FIRE & SECURITY GMBH (“TYCO”) AND GOVERNS YOUR USE OF THE SOFTWARE ACCOMPANYING THIS EULA, WHICH SOFTWARE INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE MEDIA, PRINTED MATERIALS, AND "ON-LINE" OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE"). BY BREAKING THE SEAL ON THIS PACKAGE, DOWNLOADING THE SOFTWARE OR INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, ACCESS, OR OTHERWISE USE THE SOFTWARE. If
this EULA is being agreed to by a corporation or other legal entity, then the person agreeing to this EULA on behalf of that corporation or entity represents and warrants that he or she is authorized and lawfully able to bind that corporation or entity to this EULA. You should print and retain a copy of this EULA for Your records.
1. SCOPE OF LICENSE. The Software may include computer code, program files and any associated media, hardware or software keys, printed material and electronic documentation. The Software may be provided to You on a stand-alone basis or pre-installed on a storage device (the media) as part of a computer system or other hardware or device (“System”). The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, and text incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Tyco and/or its suppliers.
2. GRANT OF LICENSE. This EULA grants You the following rights on a non-exclusive basis:
a. General. During the term of this EULA, this EULA grants You and Your individual employees a revocable, non-transferable, non- sublicensable, nonexclusive license to use the object code version of the Software and any Documentation for Your internal use only, subject to all Scope Restrictions. The order document under which You have licensed the Software may contain additional terms limiting the scope of Your license, including, but not limited to, a specified number of users or specific systems, licensed facilities, geographic areas, etc. (collectively, “Scope Restrictions”). Once You have purchased licenses for the number of copies of the Software that You require, You may use the Software and accompanying material provided that You install and use no more than the licensed number of copies at one time. In the event the Software is furnished for use in connection with a particular Tyco (or a Tyco affiliate’s) system or hardware product, it may only be used in conjunction with that Tyco (or Tyco affiliate’s) system or hardware product. If the Software is furnished embedded in a Tyco (or a Tyco affiliate’s) system or hardware product, the Software may not be extracted or used separately from that system or product. “Documentation” means Tyco’s then-current generally available documentation for use and operation of the Software. Documentation is deemed included in the definition of Software for purposes of this EULA. The term “Software” will be deemed to include any updates, bug fixes, and new versions (collectively, “Enhancements”) that Tyco may, in its discretion, make available to You. You are responsible for ensuring Your employees comply with all relevant terms of this EULA and any failure to comply will constitute a breach by You. The Software is licensed, not sold. Except for the limited license granted above, Tyco and its licensors retain all right, title and interest in the Software, all copies thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks and trade secret rights.
b. Locally Stored Components. The Software may include a software code component that may be stored and operated locally on one or more devices. Once You have paid the required license fees for these devices (as determined by Tyco in its sole discretion), You may install and/or use one copy of such component of the Software on each of the devices as licensed by Tyco. You may then use, access, display, run or otherwise interact with ("use") such component of the Software in connection with operating the device on which it is installed solely in the manner set forth in any accompanying documentation or, in the absence of such, solely in the manner contemplated by the nature of the Software.
c. Remotely Stored Components. The Software may also include a software code component for operating one or more devices remotely. You may install and/or use one copy of such component of the Software on a remote storage device on an internal network with all of the devices and may operate such component with each device over the internal network solely in the manner set forth in any accompanying documentation or, in the absence of such, solely in the manner contemplated by the nature of the Software; provided however, You must still acquire the required number of licenses for each of the devices with which such component is to be operated.
d. Embedded Software/Firmware. The Software may also include a software code component that is resident in a device as provided by Tyco (or a Tyco affiliate) for operating that device. You may use such component of the Software solely in connection with the use of that device, but may not retrieve, copy or otherwise transfer that software component to any other media or device without Tyco's express prior written authorization.
e. Backup Copy. You may make a back-up copy of the Software (other than embedded software) solely for archival purposes, which copy may only be used to replace a component of the Software for which You have current valid license. Except as expressly provided in this EULA, You may not otherwise make copies of the Software, including the printed materials.
3. OTHER RIGHTS AND LIMITATIONS. Your use of the Software is subject to the following additional limitations. Failure to comply with any of these restrictions will result in automatic termination of this EULA and will make available to Tyco other legal remedies.
a. Restrictions. Your use of the Software must be in accordance with the Documentation. You will be solely responsible for ensuring Your use of the Software is in compliance with all applicable foreign, federal, state and local laws, rules and regulations. You may not (i) copy or distribute the Software except to the extent that copying is necessary to use the Software for purposes set forth herein; provided You may make a single copy of the Software for backup and archival purposes; (ii) modify or create derivative works of the Software; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Software, except and only to the extent that such activity may be expressly permitted, notwithstanding this limitation or another limitation contained in this EULA, either by applicable law or, in the case of open source software, the applicable open source license; (iv) use the Software for purposes of developing a competing product or service; (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Software; (vi) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software, or directly or indirectly permit any third party to use or copy the Software. The Software may be subject to additional restrictions and conditions on use as specified in the documentation accompanying such Software, which additional restrictions and conditions are hereby incorporated into and made a part of this EULA. Under no circumstances will Tyco be liable or responsible for any use, or any results obtained by the use, of the services in conjunction with any services, software, or hardware that are not provided by Tyco. All such use will be at Your sole risk and liability.
b. Copyright Notices. You must maintain all copyright notices on all copies of the Software.
c. Transfer. You may only transfer Your rights under this EULA (i) as part of a permanent sale or transfer of all of the devices for which the Software is licensed as applicable; (ii) if You transfer all of the Software (including all component parts, the media and printed materials, any upgrades and this EULA); (iii) if You do not retain any copies of any portion of the Software; (iv) if the recipient agrees to the terms of this EULA; and (v) if the Software is an upgrade, such transfer must also include all prior versions of the Software. You agree that failure to meet all of these conditions renders such transfer null and void.
d. Subsequent EULA. Tyco may also supersede this EULA with a subsequent EULA pursuant to providing You with any future component, release, upgrade or other modification or addition to the Software. Similarly, to the extent that the terms of this EULA conflict with any prior EULA or other agreement between You and Tyco regarding the Software, the terms of this EULA shall prevail.
e. Trademarks. This EULA does not grant You any rights in connection with any trademarks or service marks of Tyco, its affiliates or its suppliers.
f. Software Keys. The hardware/software key, where applicable, is Your proof of license to exercise the rights granted herein and must be retained by You. Lost or stolen keys will not be replaced.
g. Demonstration and Evaluation Copies. A demonstration or evaluation copy of the Software is covered by this EULA; provided that the licenses contained herein shall expire at the end of the demonstration or evaluation period.
h. Registration of Software. The Software may require registration with Tyco prior to use. If You do not register the Software, this EULA is automatically terminated and You may not use the Software.
i. Compliance with Laws. The use of the Software may require your compliance with local and national laws and regulations,. You are solely responsible for compliance with all applicable laws and regulations relating to the use of the Software, including but not limited to those laws and regulations pertaining to personal data protection, privacy and security.
j. Enhancements. To the extent Tyco makes them available to You, Software Enhancements may only be used to replace all or part of the original Software that You are licensed to use. Software Enhancements do not increase the number of copies
licensed to You. If the Software is an upgrade of a component of a package of Software programs that You licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer or System. Software Enhancements downloaded via a Tyco authorized World Wide Web or FTP site may be used to upgrade multiple Systems provided that You are licensed to use the original Software on those Systems.
k. Tools and Utilities. Software distributed via a Tyco-authorized World Wide Web or FTP site (or similar Tyco-authorized distribution means) as a tool or utility may be copied and installed without limitation provided that the Software is not distributed or sold and the Software is only used for the intended purpose of the tool or utility and in conjunction with Tyco products. All other terms and conditions of this EULA continue to apply.
4. THIRD PARTY SOFTWARE. To the extent any software licensed from third parties, including open source software, (collectively, “Third Party Software”) is provided with or incorporated into the Software, You will comply with the terms and conditions of the applicable third party licenses associated with the Third Party Software, in addition to the terms and restrictions contained in this EULA. All relevant licenses for the Third Party Software are provided in the Documentation or product files accompanying the Software. By using the Software You are also agreeing to be bound to the terms of such third party licenses. If provided for in the applicable third party license, You may have a right to reverse engineer such open source software or receive open source code for such open source software for use and distribution in any program that You create, so long as You in turn agree to be bound to the terms of the applicable third party license, and Your programs are distributed under the terms of that license. If applicable, a copy of such open source code may be obtained free of charge by contacting your Johnson Controls representative. TYCO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE. ALL THIRD PARTY SOFTWARE IS PROVIDED "AS-IS," WITHOUT WARRANTIES OF ANY KIND. IN NO EVENT WILL TYCO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY SOFTWARE, EVEN IF TYCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
5. METERING DEVICES. The Software may contain technology based metering devices and passive restraints to regulate usage. For example, the Software may contain a license file limiting use to the licensed number of concurrent users/devices or named users/devices or may temporarily restrict usage until license and other fees have been paid in full. You acknowledge that such restraints and metering devices are a reasonable method to ensure compliance with the license and have been factored into the license and other fees and the EULA as a whole. You agree that You will not directly or indirectly circumvent, override, or otherwise bypass such metering devices and restraints that regulate the use of the Software.
6. TERM AND TERMINATION. Unless provided otherwise in an accompanying order document, this EULA will commence on the earlier of the date You first download, install, access or use the Software (the “Effective Date”) and continue in effect for the term specified in the order document or, if no term is specified, until it is terminated (the “Term”) as provided in this Section. Either party may terminate this EULA on written notice to the other party if the other party is in material breach of its obligations hereunder and fails to cure the breach within thirty (30) days of such written notice. In addition, either party may, in its sole discretion, elect to terminate this EULA on written notice to the other party upon the bankruptcy or insolvency of the other party or upon the bankruptcy or insolvency of the other party upon the commencement of any voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other party. In the event of any claim of intellectual property infringement relating to the Software, Tyco may terminate this EULA on written notice to You and, as Your sole and exclusive remedy, refund the license fees paid, if any, hereunder (less depreciation calculated on a three (3)-year straight-line basis commencing on the date of initial delivery to You). Sections 9 and 10 shall remain unaffected. Upon any termination or expiration of this EULA, the license granted in Section 2 will automatically terminate and You will have no further right to possess or use the Software. On Tyco’s request, You will provide Tyco with a signed written statement confirming that the Software has been permanently removed from Your systems.
7. FEES; TAXES. You will pay the fees, if any, associated with the Software. All amounts due hereunder shall be paid within thirty (30) days of the date of the invoice. Payments not made within such time period shall be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of Tyco) that are imposed by or under the authority of any government or any political subdivision thereof on the fees for the Software shall be borne solely by You, unless You can evidence tax exemption and shall not be considered a part of a deduction from or an offset against such fees. If You lose tax
exempt status, You will pay any taxes due as part of any renewal or payment. You will promptly notify Tyco if Your tax status changes. You will pay all court costs, fees, expenses and reasonable attorneys’ fees incurred by Tyco in collecting delinquent fees.
8. LIMITED WARRANTY.
a. Warranty. Tyco warrants that (i) for a period of thirty (30) days from delivery initial delivery of the Software to you (the “Warranty Period”), the Software will operate in substantial conformity with its Documentation. If, during the Warranty Period, you notify Tyco of any non-compliance with the foregoing warranty, Tyco will, in its discretion: (a) use commercially reasonable efforts to provide the programming services necessary to correct any verifiable non-compliance with the foregoing warranties; or (b) replace any non-conforming Software; or if neither of foregoing options is reasonably available to Tyco, (c) terminate this Agreement in whole or in part, and refund to You the fees, if any, paid for the non-conforming Software (less depreciation calculated on a three (3)-year straight-line basis commencing on the date of initial delivery to you). Tyco shall not be liable for failures caused by third party hardware and software (including your own systems), misuse of the Software, or Your negligence or willful misconduct. EXCEPT AS PROVIDED IN THIS SECTION, THE SOFTWARE IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TYCO AND ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS AND VENDORS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. TYCO AND ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TYCO OR ANY OF ITS PERSONNEL OR AGENTS SHALL CREATE ANY ADDITIONAL Tyco WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF Tyco’S OBLIGATIONS HEREUNDER.
b. Exclusive Remedy. Tyco's entire liability and Your exclusive remedy under the warranty set forth in this Section 8 will be, at Tyco's option, to (i) attempt to correct Software errors with efforts Tyco believes suitable to the problem, (ii) replace at no cost the recording medium, Software or documentation with functional equivalents as applicable, or (iii) refund a pro-rated portion of the license fee paid for such Software (less depreciation based on a five-year life expectancy) and terminate this EULA, provided, in each case, that Tyco is notified in writing of all warranty problems during the applicable warranty period. Any replacement item will be warranted for the remainder of the original warranty period. No remedy is provided for failure of the Software if such failure is the result of accident, abuse, alteration or misapplication with respect to the Software or any hardware on which it is loaded. Warranty service or assistance is provided at the original point of purchase.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TYCO AND ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE AGGREGATE LIABILITY OF TYCO AND ITS AFFILIATES AND THEIR RESPECTIVE SUPPLIERS AND VENDORS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO FEES PAID BY YOU FOR THE SOFTWARE, IF ANY, DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. BECAUSE AND TO THE EXTENT THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF LIABILITY ABOVE, THESE MAY NOT APPLY TO YOU.
10. CONFIDENTIALITY. You acknowledge that the ideas, methods, techniques, and expressions thereof contained in the Software (collectively, “Tyco Confidential Information”) constitute confidential and proprietary information of Tyco, the unauthorized use or disclosure of which would be damaging to Tyco. You agree to hold the Software and Tyco Confidential Information in strictest confidence, disclosing information only to permitted individual employees who are required to have access in order to perform under this Agreement and to use such information only for the purposes authorized by this Agreement. You are responsible for and agree to take all reasonable precautions, by instruction, agreement or otherwise, to ensure that Your employees who are required to have access to such information in order to perform under this Agreement, are informed that the Software and Tyco Confidential Information are confidential proprietary information belonging to Tyco and to
ensure that they make no unauthorized use or disclosure of such information. You may disclose Tyco Confidential Information if You are required to do so pursuant to a governmental agency, a court of law or to any other competent authority so long as You provide Tyco with written notice of such request prior to such disclosure and cooperate with Tyco to obtain a protective order. Prior to disposing of any media reflecting or on which is stored or placed any Software, You will ensure any Software contained on the media has been securely erased or otherwise destroyed. You recognize and agree a remedy at law for damages will not be adequate to fully compensate Tyco for the breach of Sections 1, 2, or 10. Therefore, Tyco will be entitled to temporary injunctive relief against You without the necessity of proving actual damages and without posting bond or other security. Injunctive relief will in no way limit any other remedies Tyco may have as a result of breach by You of the foregoing Sections or any other provision of this Agreement.
11. DATA COLLECTION AND USE. You acknowledge and agree that the Software and/or hardware used in connection with the Software may collect data resulting from or otherwise relating to Your use of the Software and/or hardware (“Data”) for purposes of providing You with service/product recommendations, benchmarking, energy monitoring, and maintenance and support. Tyco shall be the exclusive owner of all Data. Tyco shall have the right to de-identify Your Data so that it does not identify You directly or by inference (the “De-Identified Data”). Tyco shall have the right and ability to use the De-Identified Data for its business purposes, including improvement of the Software, research, product development, product improvement and provision of products and services to Tyco’s other customers (collectively, “Tyco’s Business Purposes”). In the event Tyco does not own or is unable to own the De-Identified Data as a result of applicable law, or contractual commitments or obligations, You grant Tyco a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other data derived from Your use of the De-Identified Data for Tyco’s Business Purposes.
12. FEEDBACK. You may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Tyco and its affiliates with respect to their products and services, including the Software. Feedback is voluntary and Tyco is not required to hold it in confidence. Tyco may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Your intellectual property rights to make use of the Feedback, You grant Tyco and its affiliates an irrevocable, non- exclusive, perpetual, world-wide, royalty-free license to use the Feedback in connection with Tyco’s and its affiliates’ businesses, including enhancement of the Software, and the provision of products and services to Tyco’s customers.
13. GOVERNING LAW AND JURISDICTION.
a. This EULA is governed by and construed in accordance with the laws of the State of Wisconsin, as applied to agreements entered into and wholly performed within Wisconsin between Wisconsin residents. In the event the foregoing sentence is determined by a court of competent jurisdiction to not be enforceable or applicable to an action or proceeding brought by either party relating to or under this EULA, the parties agree to the application of the laws of the country in which You entered into this EULA to govern, interpret, and enforce all of Your and Tyco’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this EULA, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any such action or proceeding.
b. Jurisdiction. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in Milwaukee, Wisconsin and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding. In the event the foregoing sentence is determined by a court of competent jurisdiction to not be enforceable or applicable to an action or proceeding brought by either party relating to or under this EULA, the parties agree all rights, duties, and obligations of the parties are subject to the courts of the country in which You entered into this EULA.
14. GENERAL. This EULA constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated in this EULA and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this EULA, all of which are merged in this EULA. This EULA shall not be modified, amended or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event that any provision of this EULA is found invalid or unenforceable pursuant to judicial decree, the remainder of this EULA shall remain valid and enforceable according to its terms. Any failure by Tyco to strictly enforce any provision of this EULA will not operate as a waiver of that provision or any subsequent breach of that provision. The following provisions shall survive any termination or expiration of this EULA: Sections 3.a (Restrictions), 3.i (Compliance with laws). 4 (Third Party Software), 6 (Term and Termination), 7 (Fees and Taxes) (to the extent of any fees accrued prior to the date of termination), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Data Collection and Use), 12 (Feedback), 13 (Governing Law and Jurisdiction), 14 (General), 15 (Export/Import), and 16 (U.S. Government Rights). Tyco may assign any of its rights or obligations hereunder as it deems appropriate. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS
DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
15. EXPORT/IMPORT. The Software is licensed for use in the specific country authorized by Tyco. You may not export or import the Software to another country without Tyco’s written permission and payment of any applicable country specific surcharges. You agree to comply fully with all relevant and applicable export and import laws and regulations of the United States and foreign nations in which the Software will be used (“Export/Import Laws”) to ensure that neither the Software nor any direct product thereof are (a) exported or imported, directly or indirectly, in violation of any Export/Import Laws; or (b) are intended to be used for any purposes prohibited by the Export/Import Laws. Without limiting the foregoing, You will not export or re-export or import the Software: (a) to any country to which the United States or European Union has embargoed or restricted the export of goods or services or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country; (b) to any user who You know or have reason to know will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (c) to any user who has been prohibited from participating in export transactions by any federal or national agency of the U.S. government or European Union. You will defend, indemnify, and hold harmless Tyco and its affiliates and their respective licensors and suppliers from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any Your breach of this Section.
16. U.S. GOVERNMENT RIGHTS. The Software is a “commercial item” as that term is defined at 48 CFR 2.101 (October 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 CFR 12.212 (September 1995), and is provided to the U.S. Government only as a commercial end item. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202- 4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
17. SPECIAL PROVISIONS FOR POWERMANAGE SOFTWARE. If the Software consists of or includes Tyco’s PowerManage IP/GPRS-based Security Management Platform software, then the following additional provisions shall apply to Your use of the Software:
a. Subject to purchasing the requisite number of licenses, You may use the Software to provide services to Your, and Your authorized dealer’s end user customers (“Customers”) to remotely access and use the end user functionality of the PowerManage Software, as installed on Your hardware, for the sole purpose of remotely configuring, managing and monitoring their intrusion systems, provided that You comply with all applicable privacy and other laws governing Your providing such services and access to Customers.
b. You will not, and will not permit any dealer, Customer or other person reasonably within Your control to, rent, lease, sub- license, loan, copy, modify, adapt, merge, translate, reverse engineer, decompile, disassemble or create derivative works based on the whole or any part of the Software.
c. You may establish terms and conditions for the engagement of Your dealers and the provision of services using the Software to Customers, provided that all such agreements are consistent with the terms of this EULA. You will be solely liable to Your dealers and Customers under the terms and conditions of such agreements. Tyco will not be bound by, and You will indemnify and hold harmless Tyco and its affiliates from any claims or demands of any third party arising out of or related to, the grant of any warranties, indemnities, or other terms and conditions greater in scope than those set forth in this EULA.
d. You shall include statements in You welcome kit and/or its agreement(s) with Customer’s to remind them to keep secure their login and password details and comply with all applicable security policies.
e. You shall be solely responsible for: (i) all services You offer and supply to Your dealers and Customers; (ii) all of Your, Your dealer and Customer content, posted, printed, stored, received, routed or created through the use of the Software, including both its content and accuracy; (iii) managing the provision of the service offered by You to Your Customers using the Software; and (iv) compliance with all privacy and other laws applicable to Your use of the Software and provision of services.
f. You agree that You will comply with applicable all laws and regulations relating to the protection and privacy of the Personal Information of Customers and will utilize appropriate security, technical and organizational measures to protect against unauthorized or unlawful processing of Personal Information and against accidental loss or destruction of, or damage to, Personal Information, in connection with Your use of the Software. Personal Information means any information concerning an identifiable individual (including an End User), including information obtained from an End User through the use of Software, such as photos and video.
g. You agree to indemnify Tyco and its affiliates for any claims, damages and expenses (including reasonable attorney’s fees) related to Your or Your dealer’s failure to comply with this Section 17.