- 1. CONTRACT FORMATION The following terms constitute a license agreement between Decagon Devices Inc. (“Licensor”) and the end user and/or its agents, assigns or designees, hereinafter (“Licensee”). The use of the Em50G (“Device”) and Decagon Data Service (“Software”) is governed by the terms and conditions set forth herein. Please read these terms and conditions carefully. If you use or activate the equipment you agree to be bound by these terms and conditions. If you do not accept and agree to be legally bound by these terms and conditions, please do not use the equipment. If you choose not to accept these terms and conditions you may return the Em50G along with all original packaging and accessories for a refund of the purchase price less the cost of shipping and handling.
- 2. WIRELESS CONNECTIVITY Decagon provides wireless connectivity for your Em50G for uploading of measurement data and logger status information under a reseller licensing agreement. You will be charged a fee for wireless connectivity for your use of wireless services on your Device. Decagon reserves the right to discontinue wireless connectivity at any time or to otherwise change the terms for wireless connectivity at any time, including, but not limited to (a) limiting the frequency and amount of data that may be transferred using wireless connectivity and (b) changing the amount and terms applicable for wireless connectivity charges.
- 3. COVERAGE AND SERVICE INTERRUPTIONS You acknowledge that if your Device is located in any area without applicable wireless connectivity, you may not be able to use some or all elements of the wireless services. Decagon is not responsible for the unavailability of wireless service or any interruptions of wireless connectivity.
- 4. SOFTWARE SERVICE INTERRUPTIONS. You acknowledge that Decagon makes no promise or commitment regarding accessibility of Software or server uptime. Decagon is not responsible for the unavailability of Device data via Software or any interruptions of internet connectivity.
- 5. DATA STORAGE AND RETENTION. You acknowledge that Decagon assumes no responsibility for the storage or retention of Device data used with Software. You agree to assume sole responsibility to backup and store data collected by Device and Software.
- 6. DATA SECURITY AND PRIVACY. While the Device and Software use cryptographic methods to protect the integrity of data transfers, Decagon does not guarantee privacy of measurement data or Device status information collected and transferred by the Device to the Software or transferred by the Software to you. You are solely responsible for the security of the Device access passwords issued to you by Decagon.
- 7. AUTOMATIC UPDATES In order to keep your Software and Device firmware up-to-date, Decagon may automatically provide your Device firmware with updates/upgrades to the Software. Decagon may update Software at any time.
- 8. YOUR CONDUCT You agree you will use the wireless connectivity provided by Decagon only in connection with services Decagon provides for the Device. You may not use the wireless connectivity for any other purpose. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to wireless services. You may use the Em50G Software only on the Em50G. You may not sell, rent, lease, lend, distribute or sublicense or otherwise assign any rights to the Software in whole or in part. You may not, and you will not encourage, assist or authorize any other person to, modify, reverse engineer, decompile or disassemble the Em50G or the Software, whether in whole or in part, create any derivative works from or of the Software, or bypass, modify, defeat or tamper with or circumvent any of the functions or protections of the Em50G or Software. Further, you agree to comply with all specifications and rules outlined in the Software data access API documentation.
- 9. EXPORT REGULATIONS You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and other United States agencies and authorities, and not to transfer, or encourage, assist or authorize the transfer of the Software to a prohibited country or otherwise in violation of any such restrictions or regulations.
- 10. GOVERNMENT END USERS The Software is a "Commercial item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with these provisions, the Software is being licensed to U.S. Government end users (a) only as a Commercial item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
- 11. NO ILLEGAL USE AND RESERVATION OF RIGHTS You may not use the Em50G, or the software for any illegal purpose. You acknowledge that the sale of the Em50G to you does not transfer to you title to or ownership of any intellectual property rights of Decagon or its suppliers. All of the Software is licensed, not sold, and such license is non-exclusive.
- 12. PATENTS The Device and/or Software used in association with the Em50G may be covered by one or more patents or pending patent applications, and/or copyright and trademarks or pending applications.
- 13. TERMINATION Your rights under this Agreement will automatically terminate without notice from Decagon if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Software and Decagon may immediately revoke your access to the Service or to Digital Content without notice to you and without refund of any fees. Decagon's failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any of its rights. You may terminate the service at any time, but you will be responsible for all payments under the data services through the end of the term.
- 14. DISCLAIMER OF WARRANTIES YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE EM50G, SOFTWARE AND DATA STORAGE IS AT YOUR SOLE RISK. EXCEPT FOR THE ONE-YEAR LIMITED WARRANTY, THE EM50G, SOFTWARE AND DATA STORAGE ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND DECAGON AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DECAGON OR AN AUTHORIZED REPRESENTATIVE OF DECAGON SHALL CREATE A WARRANTY. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES.
- 15. LIMITATION OF LIABILITY TO THE EXTENT NOT PROHIBITED BY LAW, NEITHER DECAGON NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE EM50G, SOFTWARE AND DATA STORAGE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES ARISING OUT OF LOSS OF PROFITS, REVENUE, DATA OR USE OF THE EM50G OR SOFTWARE OR ANY ASSOCIATED PRODUCT, EVEN IF DECAGON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, DECAGON'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE DEVICE. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES.
- 16. WASHINGTON LAW APPLIES The laws of the state of Washington, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Decagon.
- 17. DISPUTE RESOLUTION By using the Em50G you agree to jurisdiction and venue of any dispute arising out of this agreement by the Whitman County Court unless the parties agree to a different dispute resolution process in writing.
- 18. SEVERABILITY If any term or condition of this Agreement shall be deemed invalid, void, or for any reason unenforceable, that part shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition.
- 19. AMENDMENT Decagon reserves the right to amend any of the terms of this Agreement at its sole discretion by sending an amended agreement in writing to you by first class mail or email. Your continued use of the Device and Software after the effective date of any such amendment shall be deemed your agreement to be bound by such amendment.
- 20. USE BY AUTHORIZED USERS The use of the Em50G (“Device”) is governed by the terms and conditions set forth herein whether by the end user or by a person authorized or designated by the end user. End users wishing to authorize use of the Device to a person who is a non-user must provide their designee with a copy of this License Agreement. Any designee of an end user shall sign and deliver to Decagon a signed copy of this License Agreement prior to using the Device.
- 21. CONFIDENTIAL AND PROPRIETARY INFORMATION During the use of this license, Licensee may learn or have access to certain information which is confidential, and that the continued confidentiality of this information is essential to Decagon’s continuing business operations. The parties agree that Licensee will maintain the confidentiality of that information as described in this Agreement. Confidential Information to which this Agreement applies includes, but is not limited to, the following information:
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(A) All information relating to the technology, software, instruments, manufacturing operations, trade secrets, services, sales or business practices of Decagon. This information shall include, without limitation, data and techniques, data access API, technical processes, designs and design projects, inventions and research programs, trade know-how, specific software algorithms, computer processing systems, object and source codes, user manuals system documentation, marketing plan strategies, forecasts, reports, copyrightable and patentable material, trademarks and service marks, customer lists, sources of supply, prospects or projections, finances, and/or any other proprietary or confidential information relating to the present business of Decagon or to the potential to expand and develop that business in the future.
(B) Information relating to current, former or potential customers or clients of Decagon. This information may include, but is not limited to, proprietary information concerning the identity, business affairs, methods of operation or other data pertaining to the businesses of former or current customers or potential customers of Decagon.
EULA Version 4
19/Feb/2014
