Software End User License Agreement
Revised June 6, 2017
BY INSTALLING, COPYING, OR USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SOFTWARE END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND, DO NOT USE THIS SOFTWARE. This Software End User License Agreement (“License Agreement”) is a legal agreement between you, as the end user (“End User”), and PLX Devices, Inc. (“PLX”) for the PLX software application for controlling Kiwi 4, Kiwi 3, Kiwi 2+, Kiwi 2, Kiwi, MultiGauge™ Link, Legion Solar, Legion Solar Inverters, Legion SolarHub and other hardware adapters which includes computer software and may include associated media and documentation (including, e.g., print materials and online or electronic documentation) (collectively, the “Software”). If you agree to this License Agreement on behalf of another person or entity including, without limitation, your customer or client, or the homeowner, you represent and warrant that you have the right, capacity, and authority to bind that person or entity to this License Agreement and your agreement to this License Agreement will be treated as the agreement of that person or entity and all of the terms and conditions of this License Agreement shall be binding upon that person or entity. In that event, “you” and “your” and “End User” will include and apply to that person or entity.
GRANT OF LICENSE
PLX grants to the End User a non-exclusive license to use the Software subject to the terms and conditions herein. PLX reserves the right to charge the End User a fee for the Software, use of certain features within the Software, upgrades to the Software and/or services provided in connection with the Software.
OWNERSHIP OF SOFTWARE
The Software is the intellectual property of and is owned by PLX and/or its suppliers. The Software, including, but not limited to, the structure, organization, and code (including object code and source code) of the Software, are the valuable trade secrets and confidential information of PLX and/or its suppliers. The Software is protected by law including, without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this License Agreement does not grant the End User any intellectual property rights in the Software and all rights not expressly granted are reserved by PLX and its suppliers.
THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS” WITH ALL FAULTS. PLX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE/NON-INFRINGEMENT, SECURITY, AND AVAILABILITY.
PLX IS NOT RESPONSIBLE FOR ANY ENTRIES, ALTERATIONS, ERRORS, OMISSIONS, OR MISREPRESENTATIONS MADE BY THE END USER OR ANY OTHER PERSON WHO ENTERS DATA INTO THE SOFTWARE PROGRAM. PLX DOES NOT WARRANT OR MAKE ANY REPRESENTATION THAT THE SOFTWARE WILL MEET THE END USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE INFORMATION GENERATED BY THE SOFTWARE WILL BE ERROR-FREE. PLX DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, COMPLETENESS, RELEVANCY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, OR OTHERWISE.
PLX DOES NOT WARRANT OR REPRESENT THAT ITS SECURITY PROCEDURES WILL PREVENT THE LOSS OF OR IMPROPER ACCESS TO THE DATA OR SYSTEMS OF THE END USER. PLX IS NOT RESPONSIBLE FOR TRANSMISSION ERROR OR CORRUPTION OR SECURITY OF INFORMATION CARRIED OVER TELECOMMUNICATION LINES OR FOR THE QUALITY OR AVAILABILITY OF INTERNET SERVICES. THE END USER IS SOLELY RESPONSIBLE FOR PAYING ANY AND ALL COSTS, FEES, AND EXPENSES ASSOCIATED WITH ACCESSING AND MAINTAINING INTERNET CONNECTIONS. THE END USER IS ENTIRELY RESPONSIBLE FOR AND ASSUMES ALL RISK FOR USE OF THE SOFTWARE.
LIMITATION OF LIABILITY
IN NO EVENT SHALL PLX OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, DEVELOPMENT, PRODUCTION, OR DELIVERY OF THE SOFTWARE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, BENEFITS, USE, OR DATA RESULTING FROM THE USE OF THE SOFTWARE, THE USE OF ANY RELATED LEGION SOLAR HARDWARE, OR FOR ANY DAMAGES WHATSOEVER OF ANY TYPE ARISING FROM OR RELATED TO THIS LICENSE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF PLX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OF ANY EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO THE END USER. NOTHING IN THIS LICENSE AGREEMENT SHALL EXCLUDE OR LIMIT PLX’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
IN NO EVENT, EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, SHALL PLX'S LIABILITY EXCEED THE PURCHASE PRICE OF THE SOFTWARE, IF ANY.
USE OF INFORMATION COLLECTED BY THE SOFTWARE
Any information that you provide to PLX shall become the sole and exclusive property of PLX upon submission. When you utilize the Software, input data into the Software and/or generate solutions or other information, PLX may use technology and automatic data collection tools such as web beacons, cookies, embedded web links, and other information gathering tools to collect certain statistics, output and/or data on its servers or in duplicate forms. The data may include your internet protocol address, operating system used to access the Software, the information you input (including, but not limited to, your name and contact information, your customer’s/client’s name and contact information and/or system information, project information and any other information you provide or generate using the Software or any portion of such data), and the proposal or other information you generate or send. PLX uses the information it gathers to design and improve PLX’s Software, monitor Software use, compile business and technical statistics and communicate with you and your customers/clients. PLX may share this information on an individual and/or aggregate basis within PLX, with PLX’s related companies and/or with third parties in furtherance of PLX’s business needs, however, PLX does not sell or rent such information to third parties for the purpose of soliciting you for non-PLX products and services. In addition, PLX may disclose information that you have provided to PLX if PLX has a good faith belief that such disclosure is necessary to: (i) comply with the law or legal process served on PLX; or (ii) protect or defend the rights or property of PLX or others.
If you are providing information to PLX on behalf of another person or entity and/or if you are providing PLX with the information of another person or entity, you warrant and represent that you have the right, capacity and authority to provide and use that information.
CHANGES TO THIS LICENSE AGREEMENT
PLX reserves the right to make changes to this License Agreement without prior notice to the End User. If PLX makes any material changes to this License Agreement, PLX will make the revised License Agreement available at http://plxdevices.com/kiwi-seula.Your continued use of the Software following any changes to the License Agreement constitutes your assent to all provisions of the License Agreement.
This License Agreement is governed by the laws of the State of California. The End User agrees to consent to the non-exclusive jurisdiction of the courts in California.
This License Agreement, including any addendum or amendment to the License Agreement which is included with the Software, is the entire agreement between the End User and PLX relating to the Software and the support services (if any), and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this License Agreement. To the extent the terms of any PLX policies or programs for support services conflict with the terms of this License Agreement, the terms of this License Agreement shall control. The terms of this License Agreement shall not be modified except by the consent of PLX given in a writing signed by an officer of PLX.
If any of the provisions of this License Agreement are invalid under any applicable statute or rule of law, then those provisions or portions thereof are to that extent deemed to be omitted.
Without prejudice to any other rights, PLX may terminate this License Agreement and/or suspend the End User’s access to the Software at any time if the End User does not abide by the terms and conditions of this License Agreement, in which case the End User must delete all copies of the Software.
FOR ANDROID USERS
LICENSE RESTRICTIONS The End User may use the Software only on an Android device for the purpose of connecting with PLX products. The license granted is nontransferable and is limited to the use of the Software on an Android device which the End User owns or controls. The End User may not sublicense, sell, rent or lease the Software to others, or otherwise transfer or assign the right to use the Software. The End User may not decompile, disassemble, reverse engineer, or in any way modify the Software without the prior written consent of PLX, except and only to the extent that such activity is expressly permitted by applicable law, notwithstanding this provision. The Software is protected by copyright and cannot be reproduced without PLX’s prior written consent. The Software is Copyright 2017 PLX Devices Inc. All Rights Reserved.
NO THIRD-PARTY BENEFICIARY Except as otherwise expressly provided in this License Agreement, this License Agreement is intended for the sole benefit of PLX and the End User and does not otherwise create any third-party beneficiary rights.
ACKNOWLEDGMENTS The End User represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. The End User must comply with applicable third-party terms of agreement when using the Software. The End User will use the Software in good faith and will not directly or indirectly use the Software to interfere with PLX’s business or in violation of any applicable law, regulation or guideline.
Android is a trademark of Google Inc.
FOR IPHONE USERS
LICENSE RESTRICTIONS The End User may use the Software only on an Apple-branded product that runs Apple’s iOS operating system for the purpose of connecting with PLX products. The license granted is non-transferable and is limited to the use of the Software on an Apple-branded product that runs Apple’s iOS operating system software and which the End User owns or controls. In addition, the End User must use the Software as permitted by the Usage Rules set forth in the App Store Terms of Service. The End User may not sublicense, sell, rent or lease the Software to others, or otherwise transfer or assign the right to use the Software. The End User may not decompile, disassemble, reverse engineer, or in any way modify the Software without the prior written consent of PLX, except and only to the extent that such activity is expressly permitted by applicable law, notwithstanding this provision. The Software is protected by copyright and cannot be reproduced without PLX’s prior written consent. The Software is Copyright 2017 PLX Devices Inc. All Rights Reserved.
THIRD PARTY BENEFICIARY The End User acknowledges and agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of the License Agreement, and that, upon the End User’s acceptance of the License Agreement through use of the Software, Apple will have the right (and will be deemed to have accepted the right) to enforce the License Agreement against the End User as a third party beneficiary thereof. Except as otherwise expressly provided in this License Agreement, this License Agreement is intended for the sole benefit of PLX and the End User and does not otherwise create any third-party beneficiary rights.
ACKNOWLEDGMENTS The End User acknowledges that this License Agreement is concluded between the End User and PLX Devices Inc. only, and not with Apple Inc. (“Apple”). As between PLX and Apple, PLX is solely responsible for the Software and the content thereof. The End User acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Software. The End User acknowledges that Apple is not responsible for addressing any claims of the End User or any third party relating to the Software or the End User’s possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The End User acknowledges that, in the event of any third party claim that the Software or the End User’s possession and use of that Software infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. The End User represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties. The End User must comply with applicable third party terms of agreement when using the Software. The End User will use the Software in good faith and will not directly or indirectly use the Software to interfere with PLX’s business or in violation of any applicable law, regulation or guideline. Except as otherwise required by Apple (i) any and all payments for this Software and any and all payments for upgrades to the Software are non-refundable; and (ii) the End User may cancel the Software and/or upgrades to the Software at any time, but PLX will not refund any portion of the End User’s payments.
Apple is a trademark of Apple Inc. registered in the U.S. and other countries. App Store is a service mark of Apple Inc. IOS is a trademark or registered trademark of Cisco in the U.S. and other countries and is used under license. Use of these trademarks is subject to the Guidelines for Using Apple Trademarks and Copyrights published at http://www.apple.com/legal/trademark/guidelinesfo...
The End User should contact PLX should they have any questions, complaints or claims with respect to the Software. PLX Devices, Inc. 2526 Qume Dr #23, San Jose, CA 95131 USA +1-408-745-7591 firstname.lastname@example.org www.plxdevices.com