NIAGARAAX DEVELOPER SUPPORT AGREEMENT
NIAGARAAX
DEVELOPER SUPPORT AGREEMENT
This
Developer Support agreement is entered into as of this 25 day of August 2008
(the “Effective Date”) by and between Tridium, Inc., a Delaware
corporation (“Tridium”) having its principal place of business at 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and Solarsa Inc, a Florida corporation (an
“Authorized Tridium Reseller” or “Reseller”) having its principal place of
business at 0000 Xxxx Xxxxx Xxxxxxx Xxxxx, Xxxxx Xxxxxxx 00000 (each a “Party”
and collectively, the “Parties”).
WHEREAS, Tridium has developed
the NiagaraAX
Framework, a proprietary standardized architecture and related software for
interconnecting devices and controllers, and
WHEREAS, Developer has
licensed, or wishes to license, the NiagaraAX
Framework from Tridium and to use the NiagaraAX
Framework to create its own products that are compatible with the NiagaraAX
Framework, Developer wishes to receive training, certification of its trained
employees and contractors, early releases and beta releases of NiagaraAX, and
technical support from Tridium related to Developer’s use of the NiagaraAX
Framework for that purpose, and Tridium is willing to provide such training,
certification, early releases and beta releases of NiagaraAX, and
technical support on the terms set forth herein,
NOW, THEREFORE, in exchange
for the covenants contained herein and for other good and valuable
consideration, the receipt of which each Party hereby acknowledges, Tridium and
Developer agree to the terms of this Developer Agreement as of the Effective
Date.
1.
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DEFINITIONS
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1.1
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“Affiliates” shall mean
any entity that controls, is controlled by or is under common control with
a Party. For purposes of this definition, “control” shall mean
the possession, directly or indirectly, of a majority of the voting power
of such entity (whether through ownership of securities or partnership or
other ownership interests, by contact or
otherwise.)
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1.2
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“Annual Renewal Date”
shall mean January 1 of each calendar
year.
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1.3
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“API” shall mean an
Application-Programming Interface that supports development of
applications and communication drivers for use with the NiagaraAX
Framework.
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1.4
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“Certified NiagaraAX Developer” shall mean
any individual employee or contractor of Developer who (i) has passed the
Tridium NiagaraAX
developer certification test and and (ii) for whom all annual fees set
forth on Exhibit C per developer seat have been
paid.
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1.5
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“Code” shall mean
computer-programming code, and
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i.
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“Binary Code” shall mean
Code including but not limited to Java byte Code and Object Code in a form
that is indirectly or directly executable by a computer, and is not
readable or understandable by a programmer of ordinary
skills.
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ii.
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“Object Code” shall mean
Code substantially or entirely in binary form, and includes header files
of the type necessary for use or interoperation with other computer
programs. It is intended to be directly executable by a
computer after processing or linking, but without interpretation,
compilation or assembly.
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NiagaraAX
Certified Developer Agreement
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20-JUNE-2008
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iii.
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“Source Code” shall mean
Code in a form which when printed out or displayed is readable and
understandable by a programmer of ordinary skills. It includes
procedural and object oriented Code with associated comments describing
the operation of the Code.
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iv.
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“Published Source Code”
shall mean the Source Code in the docSource module of the
NiagaraAX
Framework.
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1.6
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“Confidential
Information” shall mean any non-public information about a Party;
the Party’s business, vendors, customers, products, services, employees;
finances, costs, expenses, financial or competitive condition, policies,
and practices; a Party’s research and development efforts, marketing and
distribution efforts, licensing, cross-licensing, marketing and
distribution practices; computer software programs and programming tools
and their respective design, architecture, modules, interfaces, databases
and database structures, non-literal elements, capabilities and
functionality, Code, APIs, including without limitation the Licensed
Materials, which are the Confidential Information of
Tridium; other information licensed or otherwise disclosed to a
Party in confidence by a third party; the specific terms of this
Agreement; and any other non-public information that does or may have
economic value by reason of not being generally
known. “Confidential Information” does not, however, include
information that: (i) is now or subsequently becomes generally available
to the public through no fault or breach on the part of the receiving
Party; (ii) the receiving Party can demonstrate to have had lawfully in
its possession without an obligation of confidentiality prior to
disclosure hereunder; (iii) is independently developed by the receiving
Party without the use of any Confidential Information of the disclosing
Party as evidenced by written documentation; (iv) the receiving Party
lawfully obtains from a third party who has the right to transfer or
disclose it and who provides it without any obligation to maintain the
confidentiality of such information; or (v) is required to be disclosed by
court order or operation of law.
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1.7
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“Developer Product” shall mean an
application or applet developed by Developer using the Licensed Materials,
provided however, Developer Product shall not include any Code from the
Licensed Materials, and shall not include any derivative work based on any
of the Licensed Materials.
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1.8
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“Documentation” shall
mean the printed or online reference material furnished to Developer by
Tridium as part of the Licensed Materials, including, without limitation,
instructions, End User guides and development
guides.
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1.9
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“Early Releases” shall
mean alpha and beta releases of the NiagaraAX
Framework which have not been released commercially but have been made
available to the Niagara developer community for
testing.
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1.10
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“Effective Date” shall
mean the date identified in the preamble of this
Agreement
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1.11
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“End Use License
Agreement” means the end user license agreement entered into by
Developer upon installation of the Licensed Materials, a copy of which, as
it may be updated from time to time, can be found on Tridium’s
web site, the link as of the Effective Date being: xxxx://xxx.xxxxxxx.xxx/xx/xxxxxxxx_/_xxxxxxxx/xxxxxxxxx
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1.12
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“Intellectual Property
Rights” means (a) all inventions (whether patentable or
un-patentable and whether or not reduced to practice), all improvements
thereto, and all patents, patent applications, and patent disclosures,
together with all re-issuances, continuations, continuations-in-part,
revisions, extensions, and reexaminations thereof, (b) all Marks including
trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and
all applications, registrations, and renewals in connection therewith, (c)
all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith, and (d) all mask
works and all applications, registrations, and renewals in connection
therewith.
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Certified Developer Agreement
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20-JUNE-2008
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1.13
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“Licensed Materials”
shall mean the copy of the NiagaraAX
Framework, and any other products listed on Tridium’s applicable price
list as being available to Developers, that Developer has licensed, or
hereafter licenses, from Tridium.
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1.14
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“Xxxx(s)” shall mean a
Party’s trademarks, service marks, combination marks and logos that are
licensed hereunder and identified on Exhibit A, and the phrase “Certified
NiagaraAX
Developer.”
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1.15
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“NiagaraAX Developer Program” or
(“NAXDP”) shall mean the training program for Developer’s employees
as described in Exhibit D attached
hereto.
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1.16
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“Niagara
AX
Framework” shall mean the software, including the Licensed
Materials, developed by Tridium for interconnecting devices and
controllers.
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1.17
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“NiagaraAX Licensing Tool” shall
mean Tridium’s proprietary software, in Binary Code, that permits the
Developer to embed a license key into Developer Products to authorize
Developer’s customers to use such
products.
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1.18
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“Price List” shall mean
the Developer Price List or the Price List applicable under Developer’s
distributor or reseller agreement with Tridium if Developer is also an
authorized Tridium distributor or
reseller.
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1.19
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“Promotional Materials”
shall mean any press release, product brochure and similar
material, indicating Developer is a “Certified NiagaraAX
Developer.
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1.20
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“Term,” “Initial Term” and
“Renewal Term” shall have the meanings set forth in Section 10
below.
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1.21
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“Upgrades” shall mean
any unspecified modification, error correction, bug fix, or other update
or enhancement to or for the Licensed
Materials.
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2.
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DEVELOPER
RIGHTS AND OBLIGATIONS RELATED TO LICENSE AND USE OF NIAGARAAX
FRAMEWORK.
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2.1
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License
of NiagaraAX
Framework; Terms of License: Developer
has purchased, or shall purchase, a copy of the AX Supervisor component of
the NiagaraAX
Framework and may purchase other Licensed Materials, and has entered into,
or will upon purchase of a copy of any of the Licensed Materials enter
into, the End User License Agreement that is included with the Licensed
Materials. Developer hereby represents that it has read and understands
the End User License Agreement, and acknowledges that it is bound by the
terms of the End User License Agreement in the form included with the
copy(ies) of the Licensed Materials purchased by it from time to time, and
that it has, and shall have, no rights in the Licensed Materials except as
set forth in such agreements. Specifically, but without
limitation, Developer agrees that it shall not include in any Developer
Product any Code included in the Licensed
Materials.
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2.2
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Ownership
of Developer Products. Developer
shall own and retain all title and interest in and to the Intellectual
Property Rights in the Developer
Products.
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2.3
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Right
to Early Releases. Developer
may license from Tridium any Early Release, and such license shall be
without charge, provided that Developer is current in payment of all fees
due. All such software shall be for Developer’s internal use
for evaluation purposes only, shall be used by Developer at its own risk
and shall otherwise be subject to the terms and limitations included in
the End User License Agreement accompanies the
software.
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NiagaraAX
Certified Developer Agreement
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20-JUNE-2008
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2.4
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NiagaraAX Certified Developer(s) On
Staff. Developer shall have at least one NiagaraAX
Certified Developer on staff as an employee or contractor for each
Developer home office and each other office at which it stations staff
with responsibility for Developer regional engineering or customer support
of Developer Products (a) within 90 days of the Effective Date, and (b)
thereafter at all time during the entire Term of this
Agreement. Any one of or more of the following breaches of this
Section 2.4 shall constitute a material breach giving Tridium the right to
terminate under Section 10.2 below: (i) failure of Developer to comply
with its obligations to be performed within 90 days of the Effective Date,
(ii) failure to comply with its other obligations due to failure to timely
pay the fees required to maintain the Certified NiagaraAX
Developer status of at least one Certified NiagaraAX
Developer on its staff, or (iii) failure to comply with such
obligations for any other reason for a period of at least 90
days.
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3.
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TRADEMARKS LICENSE
GRANT
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3.1
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By
Developer.
During the Term, Developer grants Tridium a right of publicity to
use the Developer Marks described in Exhibit A in its Promotional
Materials, financial reports, and prospectuses indicating Developer is a
NiagaraAX
Developer.
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3.2
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By
Tridium. After such time, and for so long as Developer
has at least one employee who has completed the NAXDP training and passed
a certification test as described on Exhibit D, Tridium grants Developer a
right of publicity to use the Tridium Xxxx described in Exhibit A in its
Promotional Materials, financial reports, and prospectuses indicating
Developer has one or more Certified NiagaraAX
Developer(s) on staff. Tridium may update Exhibit A with respect to the
Tridium Xxxx at any time upon notice to Developer. Developer
shall adhere to the trademark guidelines attached as Exhibit B, which may
be updated from time to time by Tridium upon notice to
Developer.
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3.3
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Limitations. Neither
Party shall combine the other Party’s Marks with any other name or make
use of any of the other Party’s Marks in its own trademarks, service
marks, logos, or trade names; or make any use or presentation of the other
Party’s Marks that would infringe, dilute, weaken, or otherwise damage or
impair the other Party’s rights in its Marks. The Parties shall
not: (i) challenge the other Party’s ownership or use of its
Marks; (ii) register the other Party’s Marks; or (iii) incorporate any
Xxxx of the other Party into its Marks, company name(s), internet domain
name(s), or any other similar designations. If Developer
acquires any rights in Tridium Marks by operation of law or otherwise, it
will immediately at no expense to Tridium, assign those rights to Tridium
with any associated goodwill, applications and
registrations.
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3.4
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Xxxx
Usage Requirement.
Developer acknowledges that Tridium is the owner of all right,
title and interest in the Tridium Marks set forth on Exhibit A and Tridium
acknowledges that Developer is the owner of all right, title and interest
in the Developer Marks set forth on Exhibit
A.
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4.
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DEVELOPER’S
ACKNOWLEDGEMENTS
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Developer
acknowledges that Developer Products will not function unless used in connection
with a copy of all, or part, of the NiagaraAX
Framework, which must be licensed from Tridium, directly or through an
authorized Tridium distributor or reseller. Developer further
acknowledges that this Developer Agreement does not authorize it to license, or
distribute copies of, any part of the NiagaraAX
Framework or to license or otherwise distribute any NiagaraAX-based
product, other than Developer Products made by Developer, to any
person.
5.
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TERMS
AND CONDITIONS FOR ACCEPTANCE OF
ORDERS
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All
written purchase orders and/or telephone orders placed by Developer for copies
of any Licensed Materials, technical support or training shall be subject to the
terms and conditions of this Developer Agreement and those set forth on Exhibit
E hereto. Any terms or conditions appearing on any order or
confirmation that are different from or in addition to those required hereunder
shall not be binding on the Parties, even if signed and returned, unless both
Parties hereto expressly agree in a separate writing to be bound by such
separate or additional terms and conditions.
NiagaraAX
Certified Developer Agreement
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20-JUNE-2008
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6.
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TECHNICAL
SUPPORT, MAINTENANCE, TRAINING & EARLY
ACCESS
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6.1
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Tridium
Support. Tridium’s support responsibilities shall be in
accordance with Exhibit D attached hereto. Tridium shall have
no obligation under this Developer Agreement to have direct contact with
any customers to whom Developer may have distributed Developer
Products. All individual Developers (whether certified or not
certified) have access to Tridium’s NiagaraAX
Developer Support Forum, a website supported by Tridium which includes
frequently asked questions and technical support notices related to the
NiagaraAX
Framework and the NiagaraAX
Licensing Tool.
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6.2
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Scope
of Support. Tridium’s support responsibilities under
this Developer Agreement are limited to assisting individual NiagaraAX
Certified Developers who are retained by Developer as employees or
contractors with standard Niagara-based application tools and Niagara
driver development. Tridium shall have no obligation under this
Agreement to provide assistance for complex projects, or support requests
requiring more than approximately four to six (4 - 6) hours of Tridium
support to complete, are to be provided under the terms of a Professional
Services Agreement (“PSA”) with Tridium. “Complex”
projects for this purpose include, by way of example, custom applications,
on-site support, servlet application development engineering and core
development engineering on the NiagaraAX
Framework.
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6.3
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Training. Tridium
will provide NAXDP training to employees and contractors of Developer for
which Developer requests such training on the terms and conditions set
forth in Exhibit D attached hereto.
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6.5
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Early
Access. During the
Term of this Developer Support Agreement, individual Certified
NiagaraAX
Developers shall have access to any Early Releases that Tridium may make
available to the developer community as provided under Section 2.3
above.
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7.
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PAYMENT
TERMS AND RELATED OBLIGATIONS
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Developer
shall pay Tridium the fees listed in Exhibit C. Developer’s rights
under this Agreement shall be deemed to be purchased under the terms set forth
on Exhibit E, whether or not Developer elects to place a purchase order to
document the purpose for which such fees are being paid, so that the terms of
Exhibit E shall apply to Developer’s obligations to pay such fees and Tridium’s
remedies for failure of Developer to fully pay any fees payable under Exhibit C
when due shall include those set forth in Exhibit E under the caption “Payment
and Credit Terms.” Furthermore, Developer’s failure to fully pay any
fees due under Exhibit C or any purchase order shall be deemed to justify
suspension of performance of support services by Tridium under this Agreement,
and failure to pay any such fees within sixty (60) days after the applicable due
date, shall be deemed a material breach of this Agreement, justifying suspension
of the performance by Tridium of its other obligations under this Agreement and
immediate termination of this Agreement by Tridium. No such
suspension shall relieve Developer from paying past due fees plus interest and
in the event of collection enforcement, Developer shall be liable for any costs
associated with such collection, including, but not limited to, legal costs,
attorneys' fees, court costs and collection agency fees.
8.
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CONFIDENTIALITY
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8.1
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Confidential
Information. During the Term of this Agreement, the
Parties acknowledge that Confidential Information may be disclosed by one
Party to the other Party.
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Certified Developer Agreement
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20-JUNE-2008
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8.2
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Obligations. Except
as otherwise expressly provided in this Agreement, each Party agrees to
keep confidential the Confidential Information of the other disclosed
during the Term of this Agreement, and to not disclose Confidential
Information of the other to third parties except for confidential
disclosures made to directors, officers, employees, consultants, counsel,
accountants, professional advisers and other agents of the Party or its
Affiliates whose duties justify access to such Confidential Information to
perform such Party’s obligations or exercise its rights hereunder, and who
have each agreed to comply with nondisclosure protections at least as
protective of the other Party’s Confidential Information as those in this
Section and to use such Confidential Information solely for the purposes
set forth in this Agreement. Each Party agrees that its
obligations with respect to the other Party’s Confidential Information shall
survive for (i) a period of three (3) years following receipt of such
Confidential Information related to the disclosing Party’s general
business information and (ii) indefinitely with respect to any
Confidential Information related to the disclosing Party’s trade secrets
or know-how. During the Term of this Agreement, each
Party shall take reasonable steps, at least substantially equivalent to
the steps it takes to protect its own proprietary information to prevent
the duplication or disclosure of Confidential Information of the other
Party. Each Party shall use its best efforts to cause any third
parties that may come into possession of any Confidential Information to
maintain the confidentiality of such
information.
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9.
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DISCLAIMERS
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9.1
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DISCLAIMER
OF WARRANTY. Developer acknowledges that
the training and certification provided under this
Agreement are intended to convey information about the
essential functions of the Licensed Materials, and to certify
demonstration of a reasonable level of knowledge of such functions to
Tridium, but that neither training nor certification is intended to, or
does, indicate that any individual (i) has the knowledge or ability to, or
will in any particular case, cause the Licensed Materials or any Developer
Product to perform in a given environment, configuration or situation as
desired or in a safe or appropriate manner, or (ii) will in any particular
case train individuals in use of such materials in an acceptable
manner. Developer further acknowledges that the support
services provided under Exhibit D are primarily to assist Developer in
understanding use of the Niagara Framework in connection with Developer’s
development of Developer Products, but not to perform development
services, and that Developer is solely responsible for its Developer
Products whether or not any support services supplied under this Agreement
relate in part to development of a Developer Product. The
Training and Support services provided under this Agreement are provided
AS IS AND WITHOUT ANY WARRANTY OF ANY
KIND.
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9.2
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LIMITATION
OF LIABILITY. NEITHER
TRIDIUM NOR ANY OF ITS LICENSORS, OFFICERS, AGENTS, EMPLOYEES OR
REPRESENTATIVES SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OR PENALTIES (INCLUDING DAMAGES FOR LOST
PROFITS, LOST BUSINESS, LOST DATA, BUSINESS INTERRUPTION, AND THE LIKE),
HOWEVER THEY ARISE, INCLUDING WITHOUT LIMITATION FROM THE USE BY DEVELOPER
OF THE LICENSED MATERIALS, WHETHER FOR BREACH OR IN TORT, EVEN IF TRIDIUM
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
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9.3
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LIMITATION
OF REMEDIES. IN
NO EVENT SHALL TRIDIUM’S MONETARY LIABILITY TO DEVELOPER IN CONNECTION
WITH THIS DEVELOPER AGREEMENT OR THE LICENSED MATERIALS EXCEED THE AMOUNTS
PAID TO IT BY DEVELOPER PURSUANT TO THIS DEVELOPER
AGREEMENT.
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10.
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TERM
AND TERMINATION
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10.1
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Term. This
Developer Agreement shall commence on the Effective Date and, unless
terminated as provided for herein, shall run through the Annual Renewal
Date (the “Initial Term”). Upon expiration of the Initial Term,
this Developer Agreement shall automatically renew for up to three
successive one-year terms (each, a “Renewal Term”)unless, at least thirty
(30) days prior to the expiration of the then-applicable Initial Term or
Renewal Term, either Party gives the other written notice of its election
not to renew. In the event of such election not to renew, this
Developer Agreement shall expire automatically at the end of the then
applicable term. References herein to the “Term” shall include
the Initial Term and any Renewal
Term.
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Certified Developer Agreement
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20-JUNE-2008
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10.2
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Termination
for Cause. Either
Party may terminate this Developer Agreement upon a material or continuing
breach of this Developer Agreement by the other by giving thirty (30) days
prior written notice of termination, stating the cause
therefore. If within the 30-day notice period, the cause for
termination is not cured to the satisfaction of the Party giving notice,
the termination shall become effective at the close of the 30-day notice
period.
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10.3
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Termination
Upon Events of Default. This Developer Agreement may be
terminated immediately, upon the giving of written notice as
follow:
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10.3.1
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By
Tridium if Developer makes unauthorized use of, or authorizes unauthorized
use of or disclosure of, Tridium’s Confidential Information or uses any
part of the Licensed Materials other than as expressly permitted by the
End User License Agreement or another written agreement signed by
Tridium;
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10.3.2
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By
Tridium if Developer assigns or transfers this Developer Agreement or
attempts to do so without complying with the provisions of Section
11.2;
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10.3.3
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By
either Party if the other Party is indicted for the violation of any law
or regulation material to the performance of its duties
hereunder.
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10.3.4
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By
Tridium if a governmental or regulatory body imposes restrictions or
denies authority for Developer to perform the duties required of it
pursuant to this Developer
Agreement.
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10.3.5
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By
Tridium if Developer (a) ceases to do business in the normal course, (b)
becomes or is declared insolvent or bankrupt, (c) is the subject of any
proceeding related to its liquidation or insolvency (whether voluntary or
involuntary), other than a reorganization under Chapter 11 of the
Bankruptcy Code, which is not dismissed within ninety (90) calendar days,
or (d) makes an assignment for the benefit of
creditors.
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11.
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GENERAL
PROVISIONS
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11.1
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Independent
Contractor. Developer and Tridium are independent business
entities, bound to each other only as provided for
herein. Developer has no authority to bind, act on behalf of or
represent Tridium except to the limited extent Developer is expressly
authorized herein. Nothing in this Agreement creates a
relationship of employer-employee, principal and agent, master and servant
or franchisor and franchisee. Developer covenants that it shall
not act or fail to act in any way that could reasonably cause others to
believe that it has authority to act on behalf of Tridium beyond the
authority expressly granted herein.
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11.2
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Assignment. Neither
Party shall have the right to assign this Agreement or its rights and
obligations under this Agreement, directly or indirectly, by merger or
otherwise, without the prior written consent of the
other. Notwithstanding the foregoing, Developer agrees that:
(a) Tridium may assign its rights and obligations to any purchaser of
substantially all of its business; (b) Tridium may assign this Agreement
to an Affiliate; and (b) Tridium may appoint subcontractors and
sublicensees to provide all or part of the goods or services hereunder,
subject to the other terms of this Agreement. This Agreement
shall be binding upon and inure to the benefit of each Party's successors
and authorized assigns.
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11.3
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Equitable
Relief. Each Party acknowledges that any breach of its obligations
hereunder with respect to the Licensed Materials or the Confidential
information of the other Party will cause the non-breaching Party
irreparable injury for which it has no adequate remedy at law, and
therefore that the non-breaching Party will be entitled to seek and obtain
equitable relief, including preliminary injunctions and temporary
restraining orders, to prevent any unauthorized use of the non-breaching
Party’s Confidential Information, in addition to all other remedies
available to it under this Agreement or other applicable
law. The Parties also agree that any breach by Developer of its
obligations with respect to the Licensed Materials shall give Tridium the
right to equitable relief as set forth
herein.
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Certified Developer Agreement
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20-JUNE-2008
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11.4
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Headings. The
headings in this Agreement and its Exhibits are for the convenience of the
reader and shall not limit or alter the meaning of any term of this
Agreement.
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11.5
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Waiver. A waiver of
any breach of default of this Agreement shall not create a waiver of the
term or of any subsequent breach of
default.
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11.6
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Governing
Law. The
validity of this Agreement and the rights, obligations and relations of
the Parties hereunder shall be construed and determined under and in
accordance with the substantive laws of the Commonwealth of Virginia with
respect to claims governed by state law, excluding the Uniform Computer
Information Transactions Act of Virginia, and the laws of the
United States with respect to claims arising under the laws of the United
States, without regard to conflicts of laws principles and excluding the
Convention on Contracts for the International Sale of Goods. Any action
arising from or relating to this Agreement or the conduct of the Parties
pursuant hereto shall be commenced and heard solely within a federal or
state court of competent jurisdiction found within the boundaries of the
United States District Court for the Eastern District of Virginia,
Richmond Division, and Tridium and Developer each consent to personal
jurisdiction and venue in any such
court.
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11.7
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Notices. Any notice
required or allowed to be delivered hereunder shall be effective only if
served by personal service, first class or certified (return receipt
requested) U.S. mail, confirmed facsimile transmission, email (return
receipt requested) or express carrier (e.g., Fed Ex)
to the Key Contact at the address of the receiving Party set forth
below. Either Party, by notice to the other, may designate any
other individual, address or number in place of those shown
below.
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TRIDIUM
KEY CONTACT
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AUTHORIZED
TRIDIUM RESELLER
KEY
CONTACT
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Name:
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Xxxxxx Xxxxxxxx
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Name:
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Xxxxx Xxxxxxxxx
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Address:
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0000 Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
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Address:
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0000 Xxxx Xxxxx Xxxxxxx Xxxxx
Xxxxx, XX 00000
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Telephone:
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000 000-0000
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Telephone:
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000 000-0000
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Facsimile:
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804 747-5204
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Facsimile:
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000-000-0000
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E-mail:
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XXxxxxxxx@Xxxxxxx.xxx
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E-mail:
|
Xxxxx.Xxxxxxxxx@Xxxxxxx.xxx
|
|
11.8
|
Survivability. Any term or
provision of this Agreement, or portion thereof, which by its nature
survives the termination or expiration of this Agreement, shall so
survive.
|
|
11.9
|
Force
Majeure. Neither
Party shall hold the other responsible for any delay or failure of
performance to the extent directly caused by strike, riots, fire,
insurrection, embargoes, failure of carriers, inability to obtain
materials or transportation facilities, acts of God or of the public
enemy, or other causes beyond the control of that Party, irrespective of
whether the cause could be alleviated by the payment of
money.
|
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
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Page 8 of
18
11.10
|
Severability. Should
any term or provision of this Agreement be finally determined by a court
of competent jurisdiction to be void, invalid, unenforceable or contrary
to law or equity, the offending term shall be modified and limited (or if
strictly necessary, deleted) only to the extent required to conform to the
requirements of law and the remainder of this Agreement (or, as the case
may be, the application of such provisions to other circumstances) shall
not be affected thereby but rather shall be enforced to the greatest
extent permitted by law.
|
11.11
|
Entire
Agreement. This
Agreement, including its Exhibits (which are hereby incorporated by
reference), comprises the entire agreement between the Parties relating to
its subject matter. This Agreement supersedes all prior
agreements and understandings, written or oral, express or
implied. This Agreement can be amended or modified only by a
writing executed in advance by duly authorized representatives of each of
the Parties hereto. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED
BY DEVELOPER IS EXPRESSLY MADE CONDITIONAL ON DEVELOPER’S ASSENT TO THE
TERMS SET FORTH HEREIN, AND NOT THOSE IN DEVELOPER’S PURCHASE
ORDER
|
11.12
|
Order
or Precedence: To the
extent that anything contained in the End User License Agreement is
inconsistent with any other provision of this Developer Agreement, such
other provisions shall control.
|
IN
WITNESS HEREOF, the Parties have executed this Developer Agreement as of the
Effective Date.
ACCEPTED
BY:
TRIDIUM:
|
: | ||||
BY:
|
BY:
|
||||
NAME:
|
NAME:
|
||||
TITLE:
|
TITLE:
|
||||
DATE:
|
DATE:
|
Exhibit
List
Exhibit A –
Marks
Exhibit B – Trademark
Guidelines
Exhibit C – Prices and
Fees
Exhibit D – Training and
Support
Exhibit E – Terms and
Conditions
Links in Effect as of the
Date of this Agreement:
Tridium’s End User License
Agreement: xxxx://xxx.xxxxxxx.xxx/xx/xxxxxxxx_/_xxxxxxxx/xxxxxxxxx
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 9 of
18
Exhibit
A
to
NiagaraAX
Developer Support Agreement
I.
|
Tridium
Marks
|
A.
|
Phrase
identifying Developer as a certified
Developer:
|
“Certified
NiagaraAX
Developer”
|
B.
|
Certified
NiagaraAX
Developer Logo:
|
II.
|
Developer
Marks
|
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 10
of 18
Exhibit
B
to
NiagaraAX
Developer Support Agreement
.
Trademark
Guidelines - Developer
Form of
Marks. The
Tridium Marks are licensed to Developer pursuant to the terms set forth in the
Developer Agreement of which this Exhibit B is a part. Tridium shall provide
Developer with a copy of such Marks in appropriate digital or camera-ready
format. Tridium may alter, modified, or change its Marks at its sole
discretion at any time. At no time may Developer or its Authorized Developer
Partners change or modify any Tridium Xxxx.
Tridium
Marks License. Developer
may use the Tridium Marks described on Exhibit A solely in accordance with
Section 3 of the Developer Agreement. Developer may not use any other
trademark, service xxxx, combination xxxx or logo of Tridium for any
purpose.
Guidelines
for Logo Placement Within Printed or Electronic Materials.
The
following guidelines must be followed on all Promotional Materials and all
other written materials, building or truck signage, or trade show displays used
by Developer. In no event shall Developer use a Certified
NiagaraAX
Developer trademark without adhering to the applicable provisions of the
Developer Agreement and the guidelines below.
Color Promotional Materials in
which Developer uses the Certified NiagaraAX
Developer logo must feature a full color version of such logo using Tridium’s
corporate colors, which are: PMS Reflex Blue and PMS Red 032.
Black-and-white Promotional
Materials may use the black-and-white version of the logo.
All
reproduction guidelines provided by Tridium below must be met.
Appropriate
trademark/service xxxx descriptive information must be displayed within all
Promotional Materials in
which Developer uses any of the Tridium Xxxx using the format in the following
example: “Certified NiagaraAX
Developer” is a trademark of Tridium, Inc.”
Trademark
information must be displayed in a bold typeface of 10-point size or larger, but
not larger than any Developer trademark if the Developer trademark information
is smaller than 10 font. In no case, however, shall the Developer
trademark information be of a smaller font than generally customary in the
industry for printed material of similar nature, text font size, and style.
Further, this information must be displayed in the same area that Developer
trademark or registered xxxx descriptive references appear.
Logo
placement on Promotional
Materials other than web pages and other forms of electronic promotions
must be at least 32mm (width).
In the
case of oversized advertisements, the Certified
NiagaraAX
Developer logo must be one column wide based on a five column
layout.
Logo
placement on web pages and
other forms of electronic promotions must be at least one-fifth the
screen width, or one-inch in size (width), whichever is
smaller. There must be a minimum of ¼ inch clear space surrounding
the border of the logo, or 30 percent of the height of the “N” in Niagara,
whichever is greater, unencumbered by other graphics or copy. The
logo may be shown within the lower border area of the page. The lower
or outer edge of the logo must always maintain at least ½ inch clear space from
the edge of the page.
The
Certified NiagaraAX
Developer logo must be positioned over a contrasting background.
Marks May
Not Be Used on Developer Products or Developer Product
Packaging.
Developer
may not use any of the Tridium Marks on any Developer Product, Developer Product
packaging or on any other product distributed by Developer
Specific
questions pertaining to any Tridium Xxxx should be addressed to Tridium
Marketing. at: (000) 000-0000.
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 11
of 18
EXHIBIT
C
to
NiagaraAX
Developer Support Agreement
Schedule
of Prices and Fees
The amounts of all prices
and fees are set forth on the applicable Tridium Price List in effect
from time to time, and as updated from time to time.
|
A.
|
Contract Set-up
Fee. See Developer Price List in effect as of the
effective date of the Developer Support
Agreement.
|
|
B.
|
Licensed
Materials. See Developer Price List or the applicable
Price List if Developer is also an authorized Tridium distributor or
reseller for price in effect as of date of
order.
|
|
C.
|
Training Fees for NAXDP
Training. See Developer Price List as of date of
registration.
|
|
D.
|
Developer Seat Annual Fee
– See Developer Price List. Pro-rated amount due for
each NiagaraAX
Certified Developer retained by Developer, either as an employee or
contractor, upon the earlier of (i) retention of such employee or
contractor, or (ii) successful completion by such employee or contractor
of the Developer training class; annual fee due and on each Renewal
Date.
|
|
E.
|
Technical
Support. Developer shall pay for technical support
provided under Section 6.1 and Exhibit D at Tridium’s regular hourly rate
for such support in effect as of the date the support is provided as set
forth on the Developer Price List, as of the date such support hours are
purchased.
|
|
F.
|
NiagaraAX Licensing
Tool. See the Developer Price List for the up-front and
annual renewal charges for this tool. This Licensing Tool may
be purchased at any time after the Effective
Date.
|
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 12
of 18
EXHIBIT
D
to
NiagaraAX
Developer Support Agreement
TRAINING AND SUPPORT
SERVICES
Training
The
Niagara AX Developer Program (“NAXDP”) provides education and technical support
for individuals who are employees or contractors of Developer building
applications or products upon the Niagara Framework. Training is a
critical element of this program, which is designed to help a broad range of
developers gain the level of technical expertise necessary to effectively
develop applications on the NiagaraAX
Framework and support their client base.
The
Niagara NAXDP is a two-part program incorporating AXTCP (AX Technical
Certification Program) and a 3 day Developer’s training
session. All Developers wishing to have access to technical
support via telephone and e-mail, and access to the Niagara AX Developers’ Forum
must attend the NAXDP prior to receiving such support. Developer may
not use the designation “Certified NiagaraAX
Developer” except with respect to individuals who are its employees
or contractors and who have successfully completed this training and passed the
certification test and Developer has paid all fees per the Developer Price List
when due.
Support
For the
Initial Term of this Developer Agreement and for each Renewal Term thereafter,
Developer shall be entitled to hourly support at Tridium’s then current
applicable rate for developer support. Support requests shall be made either
electronically or via telephone. Tridium shall provide Developer with
a Developer ID number and Developer must give Tridium that number before
receiving any support services. Developer is solely responsible for
protecting the security of its Developer ID number and for any charges incurred
without the authorization of Developer due to its failure to do
so. Support services will be charged in increments per the current
Developer Price List. Support shall be provided solely to individuals who are
employees or contractors of Developer and who have been certified as
successfully completing NAXDP training and have a licensed Developer
Seat. Unless this Agreement has been canceled or suspended for any
reason allowed herein, support is generally available between the hours of 8:00
am and 5:00 pm Richmond, VA time, Monday through Friday on Tridium’s normal
business days.
Additionally,
Developer shall be entitled to access the NiagaraAX
Developer Forum, a website supported by Tridium which includes all Upgrades,
frequently asked questions and technical support notices related to the
NiagaraAX
Framework and the NiagaraAX
Licensing Tool. Such access shall be provided solely through
individuals who qualify to receive support as provided above.
Tridium
shall have no obligation to (i) provide technical support to any customer of
Developer or (ii) have direct contact with any such customer other than in
matter relating to a Tridium end-user license agreement that may be in effect
with such customer.
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 13
of 18
EXHIBIT
E
to
NiagaraAX Developer
Support Agreement
Tridium's
Price List Terms and Conditions for the Americas
As
of October 25, 2007
THESE TERMS AND CONDITIONS SUPERCEDE
ANY TERMS AND CONDITIONS THAT ARE ATTACHED OR PART OF ANY ORDER FORM OR PURCHASE
ORDER UNLESS SPECIFICALLY ALLOWED OR SUPERCEDED BY WRITTEN CONTRACT WITH
TRIDIUM. PURCHASER MUST ACCEPT IN WRITING THESE TERMS AND
CONDITIONS WITH EACH PURCHASE ORDER UNLESS THERE IS AWRITTEN CONTRACT BETWEEN
PURCHASER AND TRIDIUM, IN FORM ACCEPTABLE TO TRIDIUM, INCORPORATING THE TERMS
AND CONDITIONS APPLICABLE TO ALL PURCHASE ORDERS.
Disclaimer and Purchased
Representation. There can be no assurance whatsoever that control systems
such as the Tridium Niagara Framework and related software (comprised of
Hardware as defined below and related software or "Licensed Materials")
will protect Purchaser, its customers, or any individual or his, her or their
respective property from harm. Appropriate safety precautions must
always be taken when operating or maintaining equipment connected to the Niagara
Framework. Tridium assumes no responsibility or liability for any
injury or damage to any persons or property resulting from the use by Purchaser
or its customers of the Niagara Framework. Further, Purchaser
represents and warrants that it shall take all appropriate precautions,
establish appropriate procedures and post appropriate notices to ensure that
persons and property are not harmed in the event of an error, malfunction or
unexpected operation of the Niagara Framework. Unless Tridium has
provided its express written consent, neither the Hardware nor Licensed
Materials may be, and Purchaser shall make reasonable business efforts to ensure
that they are not, used in any application in which the failure of the Hardware
and/or Licensed Materials could lead to death, personal injury or severe
physical or property damage (collectively, “High-Risk Applications”), including
but not limited to the operation of nuclear facilities, mass transit systems,
aircraft navigation or aircraft communication systems, air traffic control,
weapon systems and direct life support machines. Tridium expressly
disclaims any express or implied warranty or condition of fitness for High-Risk
Applications.
Disclaimer of Software
Warranty. TRIDIUM LICENSES THE TRIDIUM NIAGARA FRAMEWORK “AS IS” WITH NO
EXPRESS OR IMPLIED WARRANTY OF ANY KIND. TRIDIUM SPECIFICALLY DISCLAIMS ALL
EXPRESS OR IMPLIED WARRANTIES TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW,
INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR
FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY TRIDIUM, OR ITS AGENTS OR EMPLOYEES SHALL CREATE
OR FORM THE BASIS OF ANY WARRANTY OF ANY KIND.
End User License
Agreement. Use of the Licensed Materials by a Purchaser or
Purchaser's customer is governed by the terms of a separate end user agreement
included in all copies of Licensed Materials. The end user license
agreement must be entered into before running the Niagara
Framework.
Hardware Limited Warranty and Hardware
Replacement Policy. Tridium warrants for 18-months from date of shipment
by Tridium that the JACE® controller and all other hardware components of the
Tridium Niagara Framework (collectively, the "Hardware"), will be
free from defects in material and workmanship. This warranty does not cover the
product if it is damaged in the process of being installed or improperly used.
This warranty does not cover replacement of Tridium’s products damaged by abuse,
accident, misuse, neglect, alteration, repair, disaster, improper installation,
or improper testing. If the product is found to be defective, Tridium, at its
option, will replace or repair the product at no charge provided that Purchaser
delivers the product along with a Return Material Authorization (RMA) number
(see below) with an explanation of any deficiency. If Purchaser ships the
product, Purchaser must assume the risk of damage or loss in transit. Purchaser
must use the original container (or the equivalent) to return the product.
Repaired or replaced products will be returned at the same revision level as
received or higher, at Tridium’s option. Tridium reserves the right to replace
discontinued product with an equivalent current generation
product. Tridium assumes no responsibility for repairs made on the
product, unless performed by Tridium authorized personnel. For materials
furnished but not manufactured by Tridium, Tridium will pass through the
warranty received from the manufacturer, to the extent permitted, to the
Purchaser.
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 14
of 18
THIS
EXPRESS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, GUARANTEES, OR
REPRESENTATIONS, EXPRESS OR IMPLIED. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.
Purchaser’s
Remedies. The Purchaser's remedies with respect to Hardware
found to be defective in material or workmanship shall be limited exclusively to
the right of repair or replacement of such defective Hardware. IN NO EVENT SHALL
TRIDIUM BE LIABLE FOR CLAIMS (BASED UPON BREACH OF IMPLIED WARRANTY OR
OTHERWISE) FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, FORESEEABLE,
CONSEQUENTIAL, OR SPECIAL OR FOR ANY EXPENSES INCURRED BY REASON OF THE USE OR
MISUSE OF THE HARDWARE.
Software Maintenance Agreements and
Other Support. Software Maintenance Agreements provide
Purchaser and Purchaser's customers access to all software upgrades released
during the maintenance agreement period for the specified
product. The Software Maintenance Agreements cover all interim
service releases and major releases (example, Rev 2.2 to Rev 2.3, including all
new features and functionality of the new release). New product
releases (example, Niagara to NiagaraAX,) are
not included as part of Software Maintenance Agreements. Purchaser
has no implicit or implied right to upgrades other than through the Software
Maintenance Agreements that it purchases. Furthermore, Tridium has no
obligation to provide any technical support to Purchaser or Purchaser's
customers unless specifically agreed to in writing between Tridium and
Purchaser.
Acceptance and Cancellation of
Orders. Tridium reserves the right to reject, cancel or
suspend any orders placed by Purchaser or refuse or delay shipment thereof if
Purchaser fails to (i) place a valid order per these Terms and Conditions; (ii)
make any payment as provided herein; (iii) meet commercially reasonable credit
or financial requirements as determined by Tridium in its sole discretion; or
(iv) otherwise comply with any terms or conditions stated herein or in any other
agreement between Tridium and Purchaser. Each order that include
Hardware is subject to a minimum billing charge of $100.00 (this clause does not
apply to additions to an existing order).
Acceptance
of Terms and Conditions. The terms and
conditions as stated herein shall apply to each order accepted or shipped by
Tridium hereunder. Tridium’s offer to sell products to Purchaser is expressly
limited to these Terms and Conditions. Tridium hereby expressly
objects to any term in any purchase order issued by Purchaser that is in
conflict with or in addition to these Terms and Conditions. Any terms or
conditions appearing on any order or confirmation received from Purchaser that
are different from or in addition to those required hereunder shall not be binding on the
parties, even if signed and returned, unless both parties hereto expressly agree
in a separate writing to be bound by such separate or additional terms and
conditions.
Delivery of
Hardware. Tridium will ship each Hardware component to the
Purchaser, or the Purchaser’s freight forwarder, located within the United
States of America, at the address specified in the shipping instructions on the
purchase order received from the Purchaser. Tridium reserves the
right to ship Hardware by any means it deems suitable. Tridium will
not ship hardware to a location outside the United States of
America. All deliveries are F.O.B. (Uniform Commercial Code terms)
place of shipment. Purchaser is responsible for all shipping charges
in accordance with Tridium’s then current shipping and billing
practices. Risk of loss shall pass to Purchaser upon Tridium’s
delivery to the carrier. Purchaser is responsible for import into the
country of destination, transport through all countries other than the United
States of America, payment of all duties and tariffs, and compliance with all
export and import laws.
Delivery of Licensed
Materials. Tridium will deliver the software directly to the
Purchaser in an electronic file format by making the same available for download
by Customer, or if expressly agreed by Tridium, by shipment of a CD-ROM or such
other means as determined by Tridium. Any such shipment will be made
in accordance with the provisions for delivery of Hardware set forth
above.
Export. Software
and Hardware, 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. Purchaser agrees to comply strictly with all such
regulations and acknowledges that it has the responsibility to obtain such
licenses to export, re-export, or import the Licensed
Materials. Without limiting the generality of the foregoing, the
Licensed Materials may not be downloaded, 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 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
|
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 15
of 18
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,
Specially Designated Narcotic 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.
|
Payment and Credit
Terms. Payment terms are cash in advance or by credit card
payment made in advance of shipment unless Tridium has agreed in writing to
other credit terms. If Tridium has agreed to extend credit to
Purchaser, then payment terms are net-thirty (30) days from date of
invoice. If Purchaser fails to pay amounts when due, late
charges of the lesser of one point five percent (1.5%) per month or the maximum
allowable under applicable law shall also become payable to
Tridium. In addition, failure of Purchaser to fully pay any fees
within sixty (60) days after the applicable due date shall be deemed a material
breach of these Terms and Conditions, justifying suspension of the performance
by Tridium under any and all purchase orders placed by Purchaser, and will be
sufficient cause for immediate termination of any such purchase orders by
Tridium. Any such suspension does not relieve Purchaser from paying
past due fees plus interest and in the event of collection enforcement,
Purchaser shall be liable for any costs associated with such collection,
including, but not limited to, legal costs, attorneys' fees, court costs and
collection agency fees.
Pricing
Policy. All prices are stated in, and payable in,
U.S. Dollars. Prices are subject to change without
notice. Written quotations will be honored for 30 days from the
date of quotation or as stated therein. Orders already entered and unshipped on
the date of a price change will be invoiced at the prices on the date the order
was received. Published prices are exclusive of freight costs.
Tridium will add to the amount due under any purchase order the cost of freight
whether shipped from a Tridium regional office or from the home office
manufacturing facility. Published prices do not include any
additional services such as design layout, system drawings, installation
drawings, job site labor, shop labor, airfreight or special delivery charges.
All labor and expenses for such services will be charged at the rates prevailing
at the time and place of occurrence. Published prices do not include
duties or sales, use, excise or other similar taxes and shall be paid by
Purchaser in addition to the stated price; or in lieu thereof, Purchaser shall
provide Tridium with required tax exemption forms.
Returning
Hardware. Before returning any Hardware, whether within
or outside the Warranty Period, the Purchaser must contact Tridium and obtain a
Return Material Authorization (RMA) number by calling Tridium's home
office. If Tridium verifies the Hardware is defective, it will issue
the Purchaser an RMA number to place on the outer package of the product.
Tridium is under no obligation to accept any Hardware without an RMA number on
the package. The Purchaser must provide the unit serial number, and
Project ID
Hardware
and related installed software may be returned for a restocking fee if it is in
an unopened and new condition. Factory-installed software may not be
returned without the related Hardware. A restocking fee will be
charged at 25% of the returned bundled hardware cost and a 75% credit will be
issued upon inspection and validation of the returned
device. Software products sold separately may not be returned for
credit.
For
in-warranty devices, Tridium will, within two business days of receipt of a
complete and accurate purchase order for the replacement part and payment for
the same by credit card, and subject to product availability, ship replacement
units, prepaid via UPS either standard overnight, 2nd day, 3rd day, or UPS
Ground in accordance with the Purchaser's requirements. The shipping
and delivery terms applicable to such shipments shall be the same as provided
above for all other products. When the replacement unit arrives, the
Purchaser shall re-pack the defective unit in the same box in which the
replacement unit was shipped, and return the same to Tridium. If Tridium
receives the failed unit within 45 days from its shipment of the advanced
replacement unit, Tridium will credit Purchaser’s credit card for the purchase
price of the replacement unit. Tridium will provide a 90 day warranty
from the date of exchange or the balance of the original warranty period,
whichever is longer.
For
out-of-warranty devices, Tridium offers advance replacement units under its
exchange program, subject to product availability. A Purchaser's
purchase order and payment by credit card is required to cover the price of the
replacement unit and associated shipping charges. See the current
Tridium price list for pricing of specific replacement
units. If the failed unit is received within 45 days after the
replacement unit is shipped, Tridium will credit Purchaser’s credit card for the
difference between the purchase price of the replacement unit and the exchange
price for that unit, less shipping charges.. Tridium will provide a
90 day warranty from the date of exchange.
Shipping
and Delivery Times.
Standard
Delivery
·
|
Tridium
will ship within ten (10) business days from the receipt of a valid and
complete order.
|
Rush
Delivery
·
|
Tridium
will ship as provided in this paragraph if the purchase order asks for
“Rush Delivery”, subject to product availability, and subject to Tridium’s
consent in the case of orders for twenty or more
products. Tridium will advise Purchaser of the availability of
Rush Delivery for orders that request Rush Delivery at the time of its
acknowledgment of the order.
|
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 16
of 18
·
|
For
each order that includes Hardware for which Tridium agrees to provide Rush
Delivery, Purchaser shall pay an amount equal to 25% of the purchase price
of the entire order in advance of shipment.Rush Delivery orders
for which Tridium issues an acknowledgment that the order is complete and
in proper form by 10:00 a.m. Eastern Time will be shipped via UPS next-day
service (a) within three business days after the day on which such
acknowledgment is issued if the order includes Hardware, and (b ) the same
day as such acknowledgment is issued if it includes only
software. In either case, the Purchaser shall pay all shipping
costs.
|
Language and
Law. The language of all purchaser orders
submitted under these Terms and Conditions shall be English, and any
documents or notices provided hereunder, communications related hereto or any
dispute resolution proceeding arising as a result of this agreement shall be
conducted in English.This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, United States of
America, without regard to the conflicts of law provisions thereof and excluding
the Convention on Contracts for the International Sale of Goods. Any
action arising from or relating to this Agreement or the conduct of the parties
pursuant hereto shall be commenced and heard solely within a federal or state
court of competent jurisdiction found within the boundaries of the United States
District Court for the Eastern District of Virginia, Richmond Division, and
Tridium and Purchaser each consent to personal jurisdiction and venue in any
such court.
NiagaraAX
Certified Developer Agreement
|
20-JUNE-2008
|
Page 17
of 18