End User License Agreement
This End-User License Agreement (“Agreement”) is made by and between LED Roadway Lighting Ltd. and its affiliates (collectively, “LRL”) and the end-user (“Customer”) of the Supplier software (“Software”). By clicking the acceptance button or accessing, installing or downloading the Software onto a computer, cell phone, PDA or other product intended for use with the Software, Customer agrees to be bound by all of the terms and conditions of this Agreement. If Customer does not agree to be bound by all of the terms and conditions of this Agreement, Customer must immediately so notify LRL, stop the installation, downloading and/or use of the Software and delete any Software from its computer, cell phone, PDA or other product.
1. License Grant
LRL hereby grants to Customer a non-exclusive, personal and non-transferable license, without right to sublicense, to install (unless the Software is made available to Customer through a SaaS offering), access, operate and use for the term purchased solely for its internal business purposes, the Software for which Customer has paid all applicable fees and use the documentation provided with the Software (“Documentation”). For Software licensed perpetually, Customer may make one (1) copy of the Software for archival and backup purposes and a reasonable number of copies of the Documentation, provided that such copies contain all copyright and intellectual property rights notices found on the original Software or Documentation. For purposes of this Agreement, “SaaS” means deployment and management services provided by LRL to Customer where LRL operates the Software on LRL servers at a LRL data center and such Software is licensed for a mutually agreed term.
2. Ownership and Intellectual Property
No intellectual property rights are assigned or transferred under this Agreement. All Software is LRL and partners valuable intellectual property and LRL reserves all rights not expressly granted herein. Customer may not: (a) modify or create derivative works of the Software; (b) assign, transfer, lease or sublicense the Software and Documentation to any third party; (c) allow access to the Software by any third party without LRL’s prior written consent; (d) use the Software to provide processing services to third parties, or otherwise use the Software on a “service bureau” or “timesharing” or subscription basis; (e) reverse engineer, disassemble, decrypt extract or otherwise reduce the Software to a human perceivable form or otherwise attempt to determine the source code or algorithms of the Software (except to the extent the foregoing restriction is expressly prohibited by applicable law); (f) infringe any of LRL and partners intellectual property rights; or (g) publish the results from any benchmark tests run on the Software. Customer may not remove or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within any Software or Documentation. The LRL database containing all content including users, messages and other data is the property of Customer. A copy of the database or a LRL import text file containing all the database information will be made available to Customer upon request.
3. Disclaimer of Warranties
Certain Software tools provided to Customer may enable Customer to change the content, programming and configuration of Networking Equipment and or Connected Devices. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LRL WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR TO THIRD PARTIES FOR ANY CONSEQUENCES OF, OR LOSSES OR DAMAGES ARISING FROM, THE USE OR MISUSE OF SUCH TOOLS BY CUSTOMER, INCLUDING BUT NOT LIMITED TO OUTAGES, DEVICE NON-REACHABILITY, LOSS OR INACCURATE READING OR TRANSMISSION OF DATA. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED ABOVE, LRL MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LRL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. LRL AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE OF THE SOFTWARE. LRL ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM ITS DATA CENTERS VIA VPN, WAN, CELLULAR OR OTHER PUBLIC COMMUNICATIONS OR BROADBAND SYSTEMS. THESE DISCLAIMERS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
4. Term and Termination
This Agreement shall remain in full force and effect for the term for which Customer has purchased the license(s), except that this Agreement will immediately and automatically terminate if (i) Customer materially breaches this Agreement, or (ii) Customer becomes bankrupt or insolvent under the bankruptcy laws of Canada or other governmental authority. Upon any termination of this Agreement, all rights granted to Customer hereunder will immediately terminate, and Customer must delete and/or destroy all Software and Documentation and any copies thereof. LRL’s exercise of any termination right under this Agreement will not limit or prejudice any right of LRL to recover damages or other rights or remedies, or give rise to any right or recovery by Customer.
5. Customer Data
LRL assumes no responsibility for the content carried on Customer’s systems or on any system provided by LRL. Customer hereby grants LRL a non-exclusive, royalty-free license, during the term of this Agreement, for the sole purpose of providing any services to Customer, to access and use any (a) Consumer Data that Customer makes available to LRL (provided, however, that Customer will only make Consumer Data available to LRL if such disclosure is essential for LRL’s performance of services hereunder), and (b) any related data generated by LRL’s services hereunder and Customer’s use of the Software (“Generated Data”). Customer represents and warrants that (i) it has, and will continue to have, during the term of this Agreement, the legal right and authority to access, use and disclose to LRL any such required Consumer Data, Generated Data and the software and systems on or through which Customer has requested LRL to provide services; and (ii) LRL’s use of any such Consumer Data or Generated Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Customer and any third party. Customer shall indemnify, defend and hold LRL harmless for any claims, demands, liabilities, losses, causes of action, damages, judgments, settlements, and costs and expenses (including, without limitation attorneys’ fees and costs) arising from claims that LRL is not entitled to access or use Consumer Data or Generated Data in accordance with this Agreement. As used herein, “Consumer Data” means any information (in any form) that identifies, relates or describes or is capable of being associated with a particular customer of Customer (e.g., name, identity card or corporate or individual tax registration numbers, account number, address) that (i) Customer provides to LRL; or (ii) is collected, created or disclosed to LRL by virtue of LRL’s performance of the services LRL provides hereunder.
6. Audit and Inspection Rights
Promptly, upon at least thirty (30) days’ prior written notice, not more frequently than once annually and only during normal business hours at a mutually agreeable location, LRL will have the right to audit the records of Customer to: (i) verify that the Software is being licensed properly , (ii) verify that the Software is being used pursuant to this Agreement, and (iii) confirm the number, identification, type and location of devices that are being actively managed at any one time by Customer’s use of the Software. Promptly, upon at least forty-five (45) days’ prior written notice, not more frequently than once annually and only during normal business hours at a mutually agreeable location, LRL shall have the right to inspect Customer's facilities and records to ensure compliance with the terms of this Agreement, as applicable. All amounts found to be owed further to an audit or inspection conducted pursuant to this Clause 8 shall be payable within thirty (30) days after date of LRL’s invoice. If the deficiency in fees or other amounts owed or reimbursable during the audited period is greater than five percent (5%) of the total amounts payable, the Customer shall reimburse LRL for the reasonable cost of the audit, in addition to the amounts owed.
7. Disputes/Governing Law
This Agreement shall be governed by, and interpreted and construed in accordance with, the substantive laws of Canada, conflicts of law excluded. Any unresolved dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the JAMS Commercial Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause. There shall be one arbitrator and the arbitration proceedings shall be held in Toronto, Ontario at the JAMS Resolution Centre and conducted in English. Notwithstanding the foregoing, either Party is entitled to obtain temporary restraining orders, preliminary injunctions, and other similar relief in a court of competent jurisdiction when necessary.
8. Export Control/Deemed Exports
No export rights are granted to Customer under this Agreement.
The Products and Services, including technical data, are subject to applicable Canadian Export Controls and U.S. export control laws, including the Canadian Export and Import Permits Act and the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. The Parties shall comply with all such applicable laws and regulations. Customer shall not, directly or indirectly, transport, export, re-export or otherwise make available (in any form, including visual access) Products or Services without LED Roadway Lighting’s prior written consent or in violation of any such laws, restrictions, or regulations. Products, Services and technology may not be provided or made available either directly or indirectly: (i) into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to United States trade sanctions, or to individuals or entities controlled by such countries or to nationals or residents of such countries (other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions); or (ii) to anyone on any denied, prohibited, or unverified list maintained by the Canadian and United States Government, including the Global Affairs Canada and the U.S. Office of Foreign Assets Control (OFAC) Specially Designated Nationals (SDN) List. Customer further acknowledges that the applicable restrictions may vary from time to time and that LRL is bound to all such restrictions.
9. General
If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be deleted and the remaining terms shall be construed so as to give maximum lawful effect to any such deleted terms. No waiver by LRL of any provision of this Agreement will constitute a waiver of any other breach of that or any other provision. This Agreement is not made for the benefit of any third parties. Customer may not assign this Agreement or any of its rights hereunder without LRL’s prior written consent. This Agreement is in the English language only, which shall be the governing language and controlling in all respects. All versions of this Agreement in any other language will be for accommodation only and shall not be binding upon LRL. All communications and notices to be made or given pursuant to this Agreement must be in the English language. Subject to the terms and limitations (if any) of any agreement between LRL and Customer, this Agreement contains the complete and entire agreement as to the subject matter hereof, and replaces and supersedes any prior or contemporaneous communications, representations, or agreements, whether oral or written with respect to such subject matter. This Agreement may not be modified except in a writing signed by LRL’s authorized representatives. LRL and the Customer recognize that if there is a breach or threatened breach by the Customer of this Agreement, damages alone may not necessarily be an adequate remedy. Accordingly, LRL will have the right to enforce the terms and conditions of this Agreement by equitable relief where applicable, including injunctive relief and specific performance, without the necessity of posting a bond.
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