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Connected IO End User License

CONNECTED IO END USER LICENSE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. BY CHECKING THE “ACCEPT” BUTTON WHILE REGISTERING IN THIS SITE, OPENING THE PACKAGE, DOWNLOADING THE SOFTWARE, OR USING THE HARDWARE PRODUCT AND/OR THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. 
These End User Terms and Conditions (“Agreement”) are legally binding between the purchasing entity identified on the applicable ordering document (e.g., quote or purchase order) (“Customer”) and Connected IO, Inc. (“Connected IO”) regarding Customer’s purchase, evaluation, and/or license of the Product(s), as described below. This Agreement is effective as of the earlier of the date set forth on the applicable ordering document or the date that Customer accepted this Agreement as described above. 

1. Definitions. 
1.1. “Hardware Product(s)” means the hardware product(s) that accompanies the Software and are described in the applicable ordering document. 
1.2. “Customer Content” means any and all data, information, sound, text, images, and other content submitted by Customer to or through the Product(s). 
1.3. “Documentation” means any user instructions, manuals or other materials, and on-line help files regarding the use of the Product(s) that are generally provided by Connected IO in connection with the Product(s). 
1.4. “Product(s)” means collectively, the Hardware Product(s) and the Software. 
1.5. “Software” means Connected IO’s commercially released machine-executable object code version of software for execution on the Hardware Product(s), as may be more fully described in the applicable ordering document. 

2. Software Licenses and Restrictions. 
2.1. License. Subject to the terms and conditions of this Agreement, Connected IO grants to Customer a non-exclusive, non-sublicenseable and non-transferable license to (a) use the Software installed on the Hardware Product(s) solely for its own internal needs; and (b) use the Documentation in connection with the permitted use of the Product(s). 
2.2. Restrictions. Licensee will not: (i) copy or reproduce the Product(s) ; (ii) modify or create any derivative works of the Product(s); (iii) decompile, disassemble, or reverse engineer the Product(s) (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product(s); (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product(s); (v) provide access to or disclose the Product(s) to any third party, or use the Product(s) to create or provide any offering or service, whether or not it is similar or competitive to the Product(s), including without limitation processing third party data files as a consultant, service provider or otherwise; (vi) extract or use any software or content that is furnished by Connected IO except as part of the Product(s); (vii) use the Product(s) for any unlawful purpose; or (viii) use the Product(s) in connection with the storage or transmission of infringing, libelous, or otherwise unlawful or tortuous material, or in violation of any third-party privacy rights. 

3. Infrastructure Requirements. 
Licensee is responsible for acquiring, installing, configuring, maintaining, securing, and backing up all systems architecture, information technology infrastructure, networking (including Internet), and storage components that connect to the Product(s). 

4. Delivery and Title. 
Delivery of Product(s) shall occur FOB Connected IO’s point of shipment to a common carrier whereupon risk of loss to the Product(s) shall pass to Customer. Customer shall be responsible for all freight, handling and insurance charges. Title to the Hardware Product(s) will pass from Connected IO to Customer at the time of full payment by Customer to Connected IO. 

5. Term and Termination. 
5.1. Term. This Agreement will be effective from the date of purchase of the Product(s) until terminated. In the case of an evaluation of the Hardware Product(s) and/or Software, this Agreement will terminate at the conclusion of the evaluation period as stated on the applicable ordering document, unless Customer purchases and/or licenses the Hardware Product(s) and/or Software prior to the conclusion of the evaluation period. 
5.2. Termination. This Agreement may be terminated for cause by either party, in the event that the other party commits a material breach of this Agreement and does not cure such breach within thirty (30) days of receipt of written notice specifying such breach and the intent to terminate. 
5.3. Effect of Termination. Upon termination of this Agreement, all rights granted to Customer with respect to the Software will terminate, and Customer will immediately discontinue use of the Software and any of Connected IO’s Confidential Information; and, upon request by Connected IO, Customer will certify in writing to Connected IO within thirty (30) days that the affected copies of the Software, in whole or in part, in any form, and any Confidential Information, have either been returned to Connected IO or destroyed in accordance with Connected IO's instructions. In addition, if title has not passed to Customer with respect to any Hardware Product(s), Customer will package and return such Hardware Product(s) to Connected IO at Customer’s expense in accordance with Connected IO’s instructions. 

6. Payment. 
Customer shall pay all amounts in full prior to shipment. Any fees for services will be invoiced monthly in advance and are nonrefundable. Customer will be responsible for all taxes resulting from the purchases other than taxes on Connected IO's net income. 

7. Limited Warranty. 
7.1. Connected IO warrants for a period of ninety (90) days from delivery that (i) the Hardware Product(s) will be free from defects in materials and workmanship, and (ii) the Software will substantially conform to the Documentation. 
7.2. The liability of Connected IO hereunder shall be limited to replacing or repairing, or at Connected IO’s option, refunding the purchase price of the affected Hardware Product(s). With respect to the Software, repair or replacement is limited to providing maintenance releases of the Software that Connected IO generally makes available from time to time. 
7.3. The Product(s) contain some components subject to open source software, freeware, shareware, or similar licensing or distribution models (“Open Source Components”). Without limiting the generality of the foregoing, Connected IO’s warranty obligations under this Agreement do not apply to Open Source Components. 

8. WARRANTY DISCLAIMER. 
EXCEPT AS SET FORTH IN SECTION 7, CONNECTED IO AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCT(S) AND DOCUMENTATION, OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT THE PRODUCT(S) WILL BE UNINTERRUPTED, ERROR FREE, OR THAT CUSTOMER CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. 

9. PRODUCT SUPPORT. 
9.1. During Customer’s initial Product Support subscription, Connected IO will provide Product Support to Customer at the applicable service level, as described at http://www.connectedio.com/support/. 
9.2. Connected IO will have no obligation to provide Product Support for: (a) Hardware Products that have been opened or modified except by Connected IO authorized personnel; (b) Hardware Products exposed to environmental conditions (temperature, power, humidity) outside the recommended guidelines; (c) improper installation of the Hardware Products or Software; (d) any modification of the Software not made by Connected IO unless it is pre-approved in writing by Connected IO; (e) any version of the Software running on any platform that is not supported by Connected IO or (f) any Hardware Product or version of the Software that has reached its end of support life. 
9.3. The initial Product Support subscription will run for a period of ninety (90) days from the effective date of this Agreement. Reinstatement of lapsed Product Support, if any, is subject to Connected IO's then-current support services reinstatement policy and fees in effect on the date the reinstatement is granted. 
9.4. Connected IO reserves the right to charge additional support fees at its then standard professional services rates for support services performed in connection with reported problems which are later determined to have been due to Customer error or third party hardware or software. Any configuration or integration work must be separately quoted by Connected IO’s professional services organization and agreed by the parties in writing. 

10. INDEMNIFICATION. 
Customer agrees to indemnify, defend, and hold Connected IO, its directors, officers, employees and agents harmless from all loss, liability, claims, demands, judgments, and expenses, including, without limitation, attorneys’ fees, arising out of, or in any way connected with Customer’s or its representative(s)’ use of the Product(s) or Customer Content, including without limitation any claim that the collection, transmission, storage or use of any Customer Content infringes the rights of a third party or any law, regulation or directive. 

11. LIMITATION OF LIABILITY. 
CONNECTED IO’S LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE. IN NO EVENT WILL CONNECTED IO BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT CONNECTED IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PRODUCT(S) ARE NOT DESIGNED, INTENDED, OR WARRANTED FOR USE IN ANY AERONAUTICAL, NUCLEAR, MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER APPLICATION IN WHICH THE USE OF THE SUPPORTED SOFTWARE COULD CREATE A SITUATION WHERE PERSONAL INJURY OR DEATH MAY OCCUR. 

12. Confidentiality. 
“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Product(s), their structure, organization, code, and related documentation are the “Confidential Information” of Connected IO. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party. 

13. Proprietary Rights. 
The Product(s) and Documentation contain Connected IO’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. Except for the license granted under Section 2.1, Connected IO reserves all right, title and interest to the Software and Documentation, including without limitation any modifications, enhancements, customizations, maintenance releases, revisions or derivative works thereof. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right under this Agreement. 

14. Government. 
The Product(s) are “commercial items” as that term is defined at 48 C.F.R. 2.101; the Software and Documentation consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product(s) and any other software and documentation covered under this Agreement with only those rights set forth herein. 

15. Miscellaneous. 
This Agreement will be governed by and construed under the laws of the State of California without regard to its conflict of laws provisions. The federal and state courts in the Northern District of California will have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior discussions, proposals and understandings between them. Without limiting the generality of the foregoing, this Agreement will supersede the terms of Customer’s form of purchase order, acknowledgment or other business forms notwithstanding Connected IO’s acceptance or acknowledgment of such business forms. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in writing signed by officers of both parties hereto. Customer agrees not to export the Product(s) in violation of the laws and regulations of the United States or any other nation. In no event may Customer assign this Agreement or its rights and obligations under this Agreement. This Agreement will be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns. If any provision of this Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Any notices or communication under this Agreement will be in writing and will be hand delivered, sent by registered or certified mail return receipt requested, by nationally-recognized express courier with a tracking system, or by confirmed facsimile transmission to the party receiving such communication, at the receiving party’s address set forth on the applicable ordering document, or such other address as a party may in the future specify to the other party.