END USER LICENSE AGREEMENT ("EULA")
PLEASE READ CAREFULLY
This End User License Agreement ("EULA") is a legal agreement between you, either as an individual, company or other legal entity (in any capacity referred to in this EULA as "End User," "You," or "Your") and Duke Manufacturing Co. ("Duke"), a Missouri corporation with offices at 2305 N Broadway, St. Louis, Missouri 63102.
For purposes of this EULA, firmware resident in Duke Hardware (the “Firmware”) shall be distinguished from all other Duke software (the “Software”), wherever that Software resides. This EULA governs your use of Duke's WiFi enabled Firmware and Software used to collect diagnostics information in connection with the performance and operation of hardware appliances you have purchased from Duke (the "Hardware", together with the Firmware and Software, the "Products").
BY USER CLICKING "I ACCEPT" BELOW, YOU ACCEPT THIS EULA. IF YOU ARE ACCEPTING THIS EULA ON BEHALF OF A CORPORATION OR OTHER ORGANIZATION, YOU ARE REPRESENTING THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT CORPORATION OR OTHER ORGANIZATION.
1. LICENSE GRANT AND RESTRICTIONS.
1.1 Firmware and Software License Grant. Subject to the terms and conditions of this EULA, Duke grants to End User a non-exclusive license (a) to use the Firmware and Software as part of the End User’s use of the Hardware with which the Firmware and Software are delivered, and (b) to use the Software in support of an End User that is in possession of and utilizing Hardware, solely for End User’s internal business purposes, unless otherwise agreed to with Duke in a separate written agreement. All other rights in the Firmware and Software are expressly reserved by Duke.License Restrictions. End User shall not: (a) sell, resell, distribute, transfer, publish, disclose, lend, lease or sublicense the Firmware or Software, or make the functionality of the Firmware or Software available to any other party (excluding contractors or other third party providing IT services to End User) through any means (unless otherwise permitted in writing by Duke) including, without limitation, by uploading the Firmware or Software to a network or file-sharing service or through any hosting, application services provider, service bureau or other type of services; (b) modify, translate or create derivative works based on the Firmware or Software, in whole or in part, or permit or authorize a third party to do so; (c) disassemble, decompile, reverse compile, reverse engineer or otherwise attempt to derive the source code of the Firmware or Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by applicable law in the jurisdiction of use notwithstanding this prohibition; (d) disclose, publish or otherwise make publicly available any benchmark, performance or comparison tests that End User runs (or has run on its behalf by a third party) on the Firmware or Software unless otherwise authorized in writing by Duke; (e) duplicate the Firmware or Software. Notwithstanding the foregoing, Hardware and any Firmware installed therein may be resold or transferred (together a “Resale”) and the purchaser or transferee (together a “Transferee”) shall automatically be granted a license to use solely said Firmware, subject to the License Restrictions set forth in Section 1.2 herein. However, the Transferee must agree to this EULA prior to using the Software. Absent agreement to this EULA by a Transferee, all Software licenses expire upon Resale of the related Hardware.Affiliates. If End User purchases the Product for use by any End User Affiliate (defined below), End User shall: (a) provide each such End User Affiliate with a copy of this EULA; (b) ensure that each such End User Affiliate complies with the terms and conditions therein; and (c) be responsible for any breach of these terms and conditions by any such End User Affiliate. For purposes of this EULA, “Affiliate” means any entity that Controls, is controlled by, or is under common Control with End User, where “Control” means ownership, directly or indirectly, of 50% or more of the voting interest of End User.Updates. End User agrees that Duke may push firmware and software updates to the Hardware in its reasonable discretion through the Software and the WiFi connection.
1.5 Data Collection. End User authorizes Duke to (i) collect diagnostics, operating and performance data relating to the Hardware (the "Data") through the Firmware and Software; (ii) store such Data on the Hardware; (iii) monitor and analyze such Data on an ongoing basis; and (iv) use, copy, and distribute such Data in aggregated or de-identified format. Duke will not sell or distribute Data to third parties other than End User's franchisor and contractors working on behalf of Duke.
1.6 Reporting. End User authorizes Duke to use Data to (i) provide diagnostic and operational reporting to End User and/or End User's franchisor; (ii) provide reporting to End User and/or End User's franchisor on compliance with franchise procedures or best practices; and (iii) provide reporting to End User and/or End User's franchisor on compliance with Duke operating recommendations and instructions.
1.7 Additional Authorizations. End User authorizes Duke to (i) use sensors within the Hardware, including without limitation thermometers, accelerometers, microphones, and other sensors to gather door opening and closing events, vibration, heat, sound, and other Data from the Hardware; (ii) use the Data to make recommendations to End User such as preventative maintenance actions based on its analysis of such Data; (iii) make recipes and other recommended operating processes, procedures or documentation available for download to the Hardware, and (iv) analyze the Data for diagnostic, performance, history, and other characteristics of Duke’s choosing.
1.8 Additional License Terms. From time to time, Duke may introduce add-ons or other additional software components into or along with the Products. Such software may be subject to additional license terms, which will be posted on the Duke website at http://dukemfg.com/. By using such software, you agree to the terms and conditions posted on the Duke website. To the extent additional software does not have referenced terms on the Duke website, the terms of this EULA will apply.
The Firmware and Software are licensed, not sold. Duke and its suppliers, as applicable, retain all right, title, interest, and ownership of the Firmware and Software, including copyrights, patents, trade secret rights, trademarks, and any other intellectual property rights therein. End User shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear in or on the Firmware or Software or related documentation as delivered to End User. To the extent you provide any suggestions or comments related to the Products to Duke or its authorized third party agent, Duke shall have the right to retain and use any such suggestions or comments in current or future products or services, without your approval or further compensation to you.
3. TERM; TERMINATION; AND EFFECT OF TERMINATION.
This EULA is effective until terminated. End User's rights under this EULA will terminate immediately without notice from Duke if End User fails to comply with or breaches any provision of this EULA. End User may terminate this EULA upon written notice to Duke. Upon termination, End User shall destroy all copies of Software other than firmware embedded in the Hardware.
4. WARRANTY DISCLAIMER.
EXCEPT AS PROHIBITED BY APPLICABLE LAW, THE FIRMWARE AND SOFTWARE ARE PROVIDED “AS IS.” DUKE AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. DUKE DOES NOT WARRANT THAT (I) THE FIRMWARE OR SOFTWARE WILL MEET END USER’S REQUIREMENTS, (II) USE THEREOF SHALL BE UNINTERRUPTED OR ERROR-FREE, OR (III) THE FIRMWARE OR SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS WHETHER KNOWN OR UNKNOWN.
5. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT SHALL DUKE OR ITS SUPPLIERS, DISTRIBUTORS, OR RESELLERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA, BUSINESS OR PROFITS, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS, SERVICES OR OTHER GOODS), ARISING OUT OF OR RELATING TO THIS EULA OR THE PRODUCTS, REGARDLESS OF THE THEORY OF LIABILITY AND WHETHER OR NOT DUKE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS; AND (B) IN NO EVENT SHALL DUKE'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS EULA, FROM ALL CLAIMS OR CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED AN AMOUNT EQUAL TO $500.
6.1 Governing Law. This EULA is governed by and construed in accordance with the laws of the State of Missouri, excluding its conflict of laws principles. The exclusive jurisdictional venue for any legal proceedings involving this Agreement or the transaction contemplated herein shall be held in any applicable state or federal court located in Saint Louis County, State of Missouri, U.S.A. The parties hereby consent to the exclusive jurisdiction of the courts of the State of Missouri, St. Louis County, or the United States District Court for the Eastern District of Missouri for the purpose of any action or proceeding brought by either of them in connection with this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA.Compliance with Laws; Export Control. End User shall be solely responsible for its compliance with, and agrees to comply with, all applicable laws in connection with its use of the Product. End User further agrees that it will not engage in any illegal activity in any relevant jurisdiction, and acknowledges that Duke reserves the right to notify its customers or appropriate law enforcement in the event of such illegal activity. End User agrees to comply fully with the U.S. Export Administration Regulations, and any other export laws, restrictions, and regulations to ensure that the Product and any technical data related thereto is not exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by such laws and regulations.Cumulative Remedies. Except as expressly set forth in this EULA, the exercise by either party of any of its remedies will be without prejudice to any other remedies under this EULA or otherwise.
6.4 Notices. All notices shall be in writing and delivered by overnight delivery service or by certified mail sent to the address published on the respective parties’ websites or the address specified on the relevant order document (attention: Legal Department), and in each instance will be deemed given upon receipt.
6.5 Waiver and Severability. The failure by either party to enforce any provision of this EULA will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification, or amendment of any provision of this EULA will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this EULA is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.
6.6 Entire Agreement. This EULA constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings and communications between the parties with respect to the subject matter hereof. Any terms or conditions contained in End User’s purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this EULA are hereby rejected by Duke and will be deemed null and void.
6.7 End User Records. End User grants to Duke and its independent advisors the right to examine End User’s books, records, and accounts that are applicable to the use of the Hardware, Firmware and Software during End User’s normal business hours to verify compliance with this EULA.
6.8 Survival. Sections regarding license restrictions, ownership, term and termination, limitations of liability, and this General section shall survive termination of this EULA.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. YOU FURTHER AGREE THAT THIS AGREEMENT FORMS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN DUKE AND YOU AND ANY CORPORATION OR ORGANIZATION ON BEHALF OF WHOM YOU ARE USING THE PRODUCTS. THIS EULA SUPERSEDES ANY PRIOR PROPOSAL, AGREEMENT, REPRESENTATIONS, DISCUSSIONS, UNDERTAKINGS, COMMUNICATIONS, OR ADVERTISING, ORAL OR WRITTEN, RELATING TO THE PRODUCTS.