HONEYWELL IS WILLING TO PROVIDE A LIMITED LICENSE OF THE SOFTWARE TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE "I ACCEPT" BUTTON. BY CLICKING ON THE "I ACCEPT" BUTTON YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. BY INSTALLING, COPYING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SOFTWARE YOU REPRESENT THAT YOU ARE ACTING ON BEHALF OF YOUR EMPLOYER (SUCH EMPLOYER HEREINFTER REFERRED TO AS "YOU" OR THE "LICENSEE"), AND ARE AUTHORIZED TO, AND DO, ACCEPT THESE TERMS ON ITS BEHALF. THE ACCEPTANCE OF THIS AGREEMENT IS REQUIRED FOR USE OF THE LICENSED SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT: (A) DO NOT INSTALL, COPY, DOWLOAD, ACCESS, OTHERWISE USE THE SOFTWARE; AND (B) RETURN THE COMPLETE UNUSED SOFTWARE AND ALL ACCOMPANYING ITEMS AND PACKING WITHIN 30 DAYS OF PURCHASE FOR A FULL REFUND OF ANY AMOUNT PAID FOR THE RETURNED SOFTWARE.
This End User License Agreement ("Agreement") is a legal contract between Honeywell International Inc., acting through its Environmental and Combustion Controls business, having an office at 1985 Douglas Drive North, Golden Valley MN 55422 ("Honeywell"), and You. The right to use the Software is granted only on the condition that You agree to the following terms:
1. LICENSE GRANT 1.1 Subject to the terms and conditions herein, Honeywell grants, and You accept, a nonexclusive, non- transferable, limited license to install, execute, and use the Software with the Designated System. All such use of the Software shall be for your internal business purposes, at and for the benefit of the Designated Facility only. 1.2 The license granted in Section 2.1 above does not include the right to make copies of the Software.
2. PROPERTY RIGHTS The Software is highly confidential and proprietary to Honeywell or Honeywell's Software vendor(s) and title thereto remains in Honeywell or Honeywell's Software vendor(s). All applicable rights in patents, copyrights, trademarks and trade secrets in the Software are and will remain in Honeywell or Honeywell's Software vendor(s). You shall not sell, lease transfer, publicly disclose or display or otherwise make available the Software or copies thereof to others. You agree to secure and protect the Software in a manner consistent with the maintenance of Honeywell's or Honeywell's Software vendor's rights therein. You shall not, and will not permit others, to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to create derivate works or alter of the Software or discover its source code. The terms of this Section will survive termination or expiration of this Agreement. You understand that violation of this provision may cause irreparable harm to Honeywell.
3. TERM AND TERMINATION 3.1 This Agreement is effective upon first installation, downloading, access, or other use of the Software and shall remain in effect until terminated. 3.2 Honeywell may terminate this Agreement immediately if you fail to comply with any of terms and conditions of this Agreement including, but not limited to, failing to pay any fees or charges when due. Termination of this Agreement by Honeywell shall, among other things, constitute termination of all licenses granted hereunder. 3.3 Within 5 days after the termination of this Agreement, unless the requirement is waived by Honeywell, you will return to Honeywell the Software in the form provided by Honeywell and all copies.
4. TRANSFER You understand that reproduction of copies of the Software and/or transfer of the Software or any copy thereof may be a serious crime, as well as subjecting You to damages and attorneys' fees. You may not transfer the original or any copy of the Software to another person except with Honeywell's prior written approval. Honeywell has the right to terminate the License, to trace serial numbers, and to take legal action if these conditions are violated. This License Agreement may not be assigned by You.
5. DISCLAIMER OF WARRANTY THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. FURTHER, HONEYWELL DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. IF THE SOFTWARE IS DEFECTIVE, YOU AND NOT HONEYWELL ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. HONEYWELL AND ITS SOFTWARE VENDORS EXCLUDE ALL WARRANTIES INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY AND INDEMNIFICATION 6.1 Neither Honeywell nor anyone else who has been involved in the creation, production or delivery of the Software shall be liable for any direct, indirect, consequential, or incidental damages (including damages for loss of business profits, business interruption, loss of business information and the like) arising out of training on the Software, nor the use of or inability to use such Software even if Honeywell has been advised of the possibility of such damages. In no event shall Honeywell will liable for any amount in excess of the amounts paid by You for the Software. 6.2 You hereby release Honeywell from any and all liability relating directly or indirectly, to Honeywell's providing training on the Software, your entry of data using the Software, your error in writing or modifying software programs using the Software, or any other act relating to or arising out use of the Software. Further, You agree to indemnify and hold Honeywell harmless from and against any claim, loss of damage, arising directly or indirectly out of your use of the Software or the use of the Software by anyone while the Software is licensed to You. In the event the cause of any damage cannot be determined, the damage will be presumed to be caused by your use of the Software and this paragraph shall apply with respect to such damage.
7. GENERAL
7.1 Honeywell shall have the right, upon reasonable notice during business hours, to audit your use of the Software for purposes of evaluating your compliance with this Agreement 7.2 This License Agreement may be amended only by an instrument in writing executed by You and Honeywell. 7.3 You agree that no copy of the Software, nor any of its associated documentation, nor any other information regarding such Software shall be transmitted into any country other than the country in which the designated installation is located without the express written consent of Honeywell. Such written consent must specify both the country from which the Software is to be moved and the country into which the Software is to be moved. 7.4 Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You agree to comply strictly with all such regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import the Software. The Software may not be used, sold, resold, sublicensed, diverted, transferred, reshipped, or otherwise exported or re- exported: (i) in, into or through any country designated as a terrorist supporting country by the U.S. government or any of its agencies; (ii) in, into or through any country for which the U.S. has an embargo or with which the U.S. or any of its agencies maintains comprehensive trade controls; (iii) to or by a national or resident of the countries described in (i) or (ii); or (iv) to or by any party included in the United States Department of Commerce's Denied Persons List, Entity List or Unverified List; or the United States Department of the Treasury's Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists List; or the United States Department of State's Designated Foreign Terrorist Organizations or Debarred Persons List; or is otherwise designated by the U.S. government, or any of its agencies, as a party with which it is unlawful to do business. 7.5 The Software is provided with restricted rights. With respect to any acquisition of the Software by or for any unit or agency of the U.S. Government ("Government"), the Software shall be classified as "Commercial Computer Software," as that term is defined in the applicable provisions of the Federal Acquisition Regulation ("FAR") and supplements thereto, including the Department of Defense ("DoD") FAR Supplement ("DFARS"). If the Software is supplied for use by DoD, the Software is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 252.227-7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227 7013(c)(1)(ii), as applicable. If the Software is supplied for use by a federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14 (ALT III), as applicable. 7.6 The failure of either party to enforce at any time any of the provisions of this agreement shall not be construed to be a continuing waiver of any provisions hereunder nor shall any such failure prejudice the right of such party to take any action in the future to enforce any provisions hereunder. 7.7 In the event any provision of this Agreement is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of this Agreement will not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added as part of this Agreement one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law. 7.8 You acknowledge that any breach of your obligations hereunder with respect to the Software or the confidential information of Honeywell will cause Honeywell irreparable injury for which it has no adequate remedy at law. You further agree that Honeywell will be entitled to seek and obtain equitable relief, including preliminary injunctions and temporary restraining orders, to prevent any unauthorized use of the Software and confidential information, without posting of bond or other security, in addition to all other remedies available to it under this Agreement or other applicable law. 7.9 This Agreement will be governed by and interpreted in accordance with the laws of the State of Minnesota without reference to conflict of laws principles. If for any reason a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, that provision will be enforced to the maximum extent possible to effectuate the intent of the parties, and the remainder of the Agreement will continue in full force and effect. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, or by the Uniform Computer Information Transactions Act (UCITA). The parties agree that exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within courts located in the State of Minnesota. Notwithstanding the foregoing, any judgment may be enforced in any United States or foreign court
8. DEFINITIONS
8.1 "Designated Facility" means the particular building(s) owned or operated by you or authorized Honeywell customers at the locations authorized by Honeywell for use with the Software. 8.2 "Designated System" means the equipment and/or computer hardware authorized by Honeywell for use with the Software. 8.3 "Software" means the computer software in machine-readable, object code form only, owned and distributed by Honeywell via CD ROM, the Internet, or other distribution mechanism, including any Updates to such Software that may be provided by Honeywell to this Agreement. 8.4 "Updates" means any enhancement, upgrade, or modification to the Licensed Software that may be provided by Honeywell under this Agreement but excluding any items licensed, marketed or distributed by Honeywell as a separately-priced product.