1. Scope and Acceptance
1.1 This On-Premises Software License and Maintenance Agreement (the “Agreement“) is entered into between Crestron Electronics, Inc., with a principal place of business at 15 Volvo Drive, Rockleigh, NJ 07647 (“Crestron”) and you (“Licensee”, “you”, and “your”) with respect to your use of Crestron On-Premises Software, including but not limited to Crestron Fusion® On-Premises, Crestron Virtual Control™ Server-Based Control System, and DM NVX® CPU-based software.
1.2 This Agreement governs Licensee’s order, access, download, installation, activation, and use of certain Crestron software products (the “On-Premises Software”) that may be installed and operated on Licensee owned, operated, or subscribed to computer or server equipment, whether on-premises or cloud-based (the “Licensee Server”), and all related documentation provided in print and/or electronic form by Crestron in connection with the On-Premises Software, including without limitation any product specification, manual, instruction or order form (where applicable) issued by Crestron, as periodically updated (the “Documentation”). Licensee Server specifically excludes Crestron branded hardware. The On-Premises Software may be used in connection with the control, automation, management, and monitoring of building and room automation, including but not limited to media and audiovisual rooms, and devices such as projectors and displays, lighting, shades, occupancy sensors, HVAC, and other devices, but may not be used for emergency response systems, to operate emergency safety devices, or for any other life safety or critical applications.
1.3 By ordering, accessing, downloading, installing, activating, or otherwise using the On-Premises Software, in whole or part, you: (a) represent and warrant that you have the proper legal authority to enter into this Agreement; (b) acknowledge that you have read this Agreement in its entirety; and (c) agree to be bound by all of the terms of this Agreement, and to the conditions and Documentation provided to you in association with your access and/or use of the On-Premises Software. IF YOU DO NOT INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE ON-PREMISES SOFTWARE.
1.4 If you are ordering, accessing, downloading, installing, activating, or otherwise using the On-Premises Software or Documentation on behalf of a third party, you represent that the third party, whether an individual or a business entity, agrees to be bound by the terms and conditions of this Agreement.
1.5 Crestron Device Software EULA. Other software that is developed by, or under the permission of Crestron, which runs on devices sold by or for Crestron, including pre-installed software, is not subject to this Agreement and is instead subject to the terms of a separate Crestron Software End User License Agreement, which may be updated by Crestron from time to time, with the latest version available at: https://www.crestron.com/Crestron-Software-End-User-License-Agreement.
2. Ownership; License Grant; and Payment
2.1 Ownership. Crestron is and will remain the sole and exclusive owner of all intellectual property rights, title, and interest in and to the On-Premises Software and the Documentation, including any modifications and improvements thereto or derivatives thereof, with the exception of any third-party components of the On-Premises Software. Licensee shall have no obligation to provide Crestron with any ideas, suggestions, recommendations, or comments (“Feedback”) relating to the On-Premises Software; however, to the extent Licensee provides any Feedback to Crestron, Crestron in its sole discretion may freely use or incorporate such Feedback for any purpose, without any obligation, restriction or payment of royalty.
2.2 License Grant. The On-Premises Software may be made available by Crestron, in its sole discretion, for license hereunder: (a) for an indefinite time period (“Perpetual License”); and/or (b) for a fixed time period (“Subscription License”) (collectively, the “License”). Licensee is granted a License, as described in the applicable Documentation, to use the On-Premises Software subject to the terms and conditions set forth in this Agreement. For each License, Crestron grants to Licensee a non-exclusive, non-transferable, non-sublicensable and limited right to use, store, and execute the On-Premises Software (in executable code format) on the Licensee Server. Licensee understands that the availability and use of some or all of the features or functionality of On-Premises Software made available under a License may be dependent on Licensee maintaining a subscription to one or more additional Crestron cloudware and/or software components. Subject to the terms of the Agreement, Licensee may download, install, access, activate, and use the On-Premises Software and the Documentation in the manner described in the Documentation and copy the On-Premises Software and the Documentation for back-up and archival purposes only.
2.3 Reservations. Licensee is not granted any proprietary right, title, interest, or ownership of the On-Premises Software and Documentation and Crestron reserves all rights not expressly granted to Licensee under this Agreement. Further, this Agreement does not authorize Licensee to use, alter, modify, remove or conceal any name, trademark or logo of Crestron.
2.4 Payment. The above License Grant is subject to the payment to Crestron by Licensee or its authorized Crestron dealer, or other reseller authorized by Crestron (“Authorized Reseller”) of all fees associated with each applicable License. In the event such fees are not paid when due, the applicable License expires, and the right to use the On-Premises Software and the Documentation will terminate.
3. Conditions of Use
3.1 Restrictions. Licensee shall use the On-Premises Software only for its own internal business purposes and shall make the On-Premises Software available only to its employees, representatives, independent contractors or invitees, who agree to be bound by the terms and restrictions set forth in this Agreement. Licensee shall not: (a) lease, rent, distribute, or sublicense the On-Premises Software to third parties; (b) use the On-Premises Software to provide, or in connection with, any commercial service or application that is for the benefit of third parties; (c) use the On-Premises Software in a way that violates any criminal or civil law; (d) attempt to gain unauthorized access to the On-Premises Software; or (e) exceed the usage limits listed in the Documentation. Except as expressly authorized by this Agreement, Licensee is prohibited from any and all other uses of the On-Premises Software and the Documentation. Licensee has no right to receive a copy of the source code to the On-Premises Software.
3.2 No Reverse Engineering. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discern the source code, operational flow, data structures, and object structures of the On-Premises Software or any of the Software’s components, data files, libraries or modules. Licensee shall not: (a) create any derivative works based upon the On-Premises Software or Documentation; (b) copy any feature, design or graphic in the On-Premises Software; or (c) access the On-Premises Software in order to build a competitive solution or to assist someone else to build a competitive solution.
3.3 Licensee Obligations. It is the Licensee’s responsibility to use an authorized Crestron dealer or authorized Crestron service provider (an “Authorized Integrator”) to install and configure On-Premises Software on the Licensee Server. The Licensee shall provide and maintain its own network capability, along with hardware and software that is compatible with the On-Premises Software, as described in the Documentation.
3.4 Protection of Personal and Confidential Information. The On-Premises Software may receive, process, store, or generate output containing personal and/or confidential information. Licensee understands and agrees that it is Licensee’s sole responsibility to implement technical and organizational measures to maintain the security of such information and protect it against accidental loss or unlawful destruction, alteration, disclosure, or access. Licensee is solely responsible for maintaining the confidentiality of passwords associated with the On-Premises Software.
3.5 Technical Safeguards. Licensee agrees that it will use all commercially reasonable technical safeguards to prevent Crestron from any access to personal or non-public information resident on any Licensee Server or other IT infrastructure, the compromise of which could result in tangible harm to an individual, including but not limited to national identification numbers, financial information, information about children, criminal records, health information, genetic characteristics, biometric data, political opinions, religious or philosophical beliefs, sexual preferences, or information regarding one or more factors specific to an individual’s physical, physiological, mental, economic, cultural, racial, ethnic, or social identity (“Sensitive Personal Information”). Crestron refuses to accept and Licensee agrees not to provide Crestron with any access to such Sensitive Personal Information in connection with any On-Premises Software and/or Software Maintenance Services.
3.6 Third Party Software. In order to operate, On-Premises Software may require that the Licensee accept separate terms that govern the use of third-party technology that is licensed under separate license terms and not under the terms of this Agreement. Licensee is responsible for accepting (e.g., by clicking to accept an applicable license agreement) and complying with these separate terms. Crestron may provide certain notices to Licensee regarding the use of such third-party technology in the Documentation.
4. Collection and Use of Information
4.1 Software Registration. Download and/or installation of the On-Premises Software or use of certain software functions may require Licensee to register by providing certain contact information to Crestron and Crestron may maintain a database of all such registered Licensees. By downloading and/or installing the On-Premises Software or using these software functions, Licensee agrees to provide accurate information during registration.
4.2 Crestron Privacy Policy. As a condition of downloading and using the On-Premises Software, you agree to the terms of the Crestron Privacy Policy at https://www.crestron.com/legal/privacy-policy, which may be updated from time to time without notice but will in no event be less stringent than the current policy.
4.3 Data Transmitted by Crestron On-Premises Software. When connected to the Internet, certain On-Premises Software, including Crestron Virtual Control™ Server-Based Control System that functions as a 4-Series® Processor, as well as DM NVX® CPU-based software, will attempt to automatically establish communication with Crestron Cloudware as described in the Crestron Privacy Statement Regarding Internet Data Collection, available at: https://www.crestron.com/legal‐data‐collection‐privacy. By installing or using the On-Premises Software, you consent to the processing, storage and transfer of your data in accordance with the above privacy policies.
5. Software Maintenance Services and Limited Warranty
5.1 Software Maintenance Services. Subject to the exclusions and restrictions set forth herein, Crestron will provide Licensee with software maintenance services consistent with the support program made available by Crestron, as set forth in the Documentation, in connection with the specific On-Premises Software product (the “Software Maintenance Services”). Software Maintenance Services for On-Premises Software subject to a Perpetual License are included for the shorter of the term set forth in the applicable Documentation or three (3) years from the date of Crestron’s sale of the On-Premises Software. Software Maintenance Services for On-Premises Software subject to a Subscription License are included for the term of the applicable Subscription License. In no event shall the term of the Software Maintenance Services exceed three (3) years from the date of Crestron’s sale of the On-Premises Software. Software Maintenance Services may include: (a) software updates periodically made available by Crestron in its sole discretion; (b) support resources; and (c) technical resources. Unless otherwise specified in the Documentation, Software Maintenance Services provided in connection with the License will be consistent with Crestron True Blue Support and Satisfaction programs, as described on Crestron’s website, www.crestron.com.
5.2 Limited Warranty. Subject to the exclusions and restrictions set forth herein, Crestron warrants that, during the term of the Software Maintenance Services, the On-Premises Software will function substantially as described in the applicable Documentation. Non-substantial variation of performance from the Documentation does not establish a warranty right (the “Limited Warranty”). If the On-Premises Software does not function substantially in accordance with the Documentation, Crestron shall, at its sole discretion, either: (a) modify the On-Premises Software to conform to the Documentation; or (b) make available a commercially reasonable workaround solution. If neither of these options is commercially feasible, either party may terminate the relevant License under this Agreement, in which case Crestron shall refund a prorated portion of the fees pre-paid to Crestron for the applicable On-Premises Software product for the remaining term of the Software Maintenance Services.
5.3 Limitations. The Software Maintenance Services and the Limited Warranty apply only to On-Premises Software purchased by or on behalf of the original Licensee directly from Crestron or an Authorized Reseller, and shall not extend to subsequent owners and cannot be transferred or assigned. The Software Maintenance Services and the Limited Warranty do not apply to any pre-release, preview, trial, beta, or demo On-Premises Software, or to any On-Premises Software provided by Crestron for free, at no cost, or on a complimentary basis, all of which are provided to Licensee "as is" and with all faults and defects, without maintenance services or warranty of any kind. Crestron has no obligations to provide Software Maintenance Services, and the Limited Warranty shall be null and void, for: (a) Licensee’s use of a version of the On-Premises Software that has passed its end-of-life date; (b) interoperability or other issues caused by any third party software or hardware, or the Licensee Server; (c) issues caused by the actions of any third party, including the Licensee, an Authorized Reseller, or an Authorized Integrator; or (d) other matters beyond Crestron’s reasonable control. Additionally, Licensee shall provide Crestron with all information, access, and full good faith cooperation reasonably necessary to enable Crestron to deliver the Software Maintenance Services and/or address a warranty claim, and if Licensee fails to do so, Crestron will be relieved of its Software Maintenance Services and/or warranty obligations to the extent that the obligations are dependent upon Licensee’s performance.
5.4 Software Versions. Crestron regularly changes, enhances, revises, updates, and upgrades the On-Premises Software, at its sole discretion. This means that the On-Premises Software is continually evolving and in order to make efficient use of these changes, the Licensee may need to upgrade its equipment, including but not limited to servers and other network equipment. Crestron recognizes that Licensee may have legitimate business reasons for not upgrading to a new version of the On-Premises Software as soon as the updated version becomes available. However, at the end of a Subscription License or Software Maintenance Services term, as set forth in the applicable order and/or Documentation, Crestron may discontinue support for certain older versions of the On-Premises Software.
5.5 Infringement. If the normal operation, possession or use of the On-Premises Software by Licensee during the term of the Software Maintenance Services is found by a court of competent jurisdiction to infringe any third party U.S. intellectual property right, or if Crestron believes that this is likely, Crestron shall, at its sole discretion, either: (a) obtain a license from such third party for the benefit of Licensee; or (b) modify the On-Premises Software so that it no longer infringes. If neither of these options is commercially feasible, either party may terminate the relevant License under this Agreement, in which case Crestron shall refund a prorated portion of the fees pre-paid to Crestron under the relevant order for the remaining term of the Software Maintenance Services. Notwithstanding the foregoing, Crestron shall have no obligation or liability for any claims of infringement of any patent, trademark, copyright or other intellectual property for the following: (a) to the extent the claims relate to the use of the On-Premises Software in combination with any third party product; (b) if the On-Premises Software was modified by anyone other than Crestron; (c) for the use or sale of the On-Premises Software other than as specified and authorized in Crestron’s documentation; or (d) for the use or sale of any version of the On-Premises Software other than the most current version.
6. Term; Termination; and Survival
6.1 Term. This Agreement starts on the date that Licensee orders, accesses, downloads, installs, activates, or uses Crestron On-Premises Software and ends when Licensee no longer has access or use of the Crestron On-Premises Software.
6.2 Termination for Cause. Either party may terminate this Agreement if the other party breaches any material term hereof and the breach is not cured within thirty (30) days of written notice. Crestron also has the right to immediately terminate a License if the associated fee is not received by Crestron, or if Licensee breaches Sections 2 or 3 of this Agreement.
6.3 Survival. Provisions that survive termination or expiration of this Agreement are those relating to ownership, limitation of liability, confidentiality, payment and others which by their nature are intended to survive.
7. Warranty Disclaimer and Limitation of Liability
7.1 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CRESTRON MAKES NO OTHER WARRANTIES OF ANY KIND, NOR AUTHORIZES ANY OTHER PARTY TO OFFER ANY WARRANTY, AND CRESTRON DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF TITLE. CRESTRON DOES NOT WARRANT THAT THE USE OF THE ON-PREMISES SOFTWARE AND/OR SOFTWARE MAINTENANCE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND CRESTRON MAKES NO WARRANTY AS TO THE ON-PREMISES SOFTWARE’S OPERABILITY WITH REGARD TO LICENSEE SERVER OR OTHER IT INFRASTRUCTURE.
7.2 NO INDIRECT DAMAGES. NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (PROPERTY OR ECONOMIC DAMAGES INCLUSIVE, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY.
7.3 MAXIMUM LIABILITY. LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY CRESTRON OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO CRESTRON, AND REFUND OF A PORTION OF THE FEES RECEIVED BY CRESTRON, PRORATED OVER THE REMAINING TERM OF THE SOFTWARE MAINTENANCE SERVICES FOR THE APPLICABLE ON-PREMISES SOFTWARE. CRESTRON’S MAXIMUM LIABILITY TO LICENSEE FOR ALL CLAIMS AND/OR DAMAGES ARISING OUT OF OR RELATED TO THE ON-PREMISES SOFTWARE, THE SOFTWARE MAINTENANCE SERVICES, AND/OR THE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO CRESTRON FOR THOSE ON-PREMISES SOFTWARE LICENSES GIVING RISE TO SUCH CLAIM. THE FOREGOING LIMITATION, EXCLUSION AND DISCLAIMER SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
8. General
8.1 Entire Agreement. This Agreement, together with the applicable Documentation, constitutes the complete and exclusive statement of the agreement among the parties about the described subject matter. It supersedes all prior written and oral statements, including any prior representation or statement. If there is a conflict between the Agreement and the applicable Documentation, the Agreement will prevail.
8.2 Waiver, Amendment, and Severability. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or any other provision of this Agreement. This Agreement may not be modified, amended, or waived except by an instrument in writing signed by the party to be bound. If any term of this Agreement is found, by a proper authority, to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of the Agreement.
8.3 Assignment. Licensee shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Crestron (which shall not be unreasonably withheld).
8.4 Compliance with Laws. Crestron and Licensee shall each comply with all applicable laws, rules, and regulations applicable to its performance under this Agreement including, but not limited to, the U.S. Commerce Department’s Export Administration Regulations, and the U.S. Department of Treasury's Office of Foreign Assets Control (OFAC). The On-Premises Software is of U.S. origin for purposes of U.S. export control laws.
8.5 Force Majeure. Neither party shall be liable for failure of performance or delays due to any act of God, accident, labor dispute, war, insurrection, riot, sabotage or terrorism, act of government or any agency thereof, fire, flood, explosion, natural disaster or similar catastrophic occurrence, epidemic or quarantine restriction, or any other cause reasonably beyond its control (including delays caused by Licensee or Licensee's employees, agents, contractors, representatives or invitees). Each party shall use commercially reasonable efforts to minimize the extent of any such delay.
8.6 Statute of Limitations. Except for actions for nonpayment or breach of Crestron’s proprietary rights, the parties agree that any action in relation to an alleged breach of this Agreement shall be commenced within two (2) years of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that two (2) year time period shall be barred, without regard to any other limitations period set forth by law or statute.
9. Governing Law and Dispute Resolution
9.1 Governing Law and Dispute Resolution. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA, without regard to conflict of laws principles. All disputes arising out of or in connection with this Agreement shall be finally and exclusively settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules. The arbitration proceeding shall be conducted in New York, New York. The language to be used in the arbitration proceeding shall be English. If binding arbitration is not allowable in a particular jurisdiction, then: (a) before initiating any legal proceeding, Licensee agrees to report any issue or concern to Crestron; (b) Licensee agrees to negotiate with Crestron in good faith to resolve each issue or concern; and then (c) either Licensee or Crestron may initiate a legal proceeding if Licensee’s issue or concern is not resolved within thirty (30) days of receipt of notice by Crestron.
9.2 Injunctive Relief. Notwithstanding the foregoing requirement that disputes be subject to binding arbitration, the parties shall retain the right to seek equitable or injunctive relief from any court of competent jurisdiction without the requirement of posting any bond.
9.3 NO CLASS ACTIONS. LICENSEE MAY ONLY RESOLVE DISPUTES WITH CRESTRON ON AN INDIVIDUAL BASIS. LICENSEE MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. LICENSEE UNDERSTANDS AND AGREES THAT CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER LEGAL PROCEEDINGS IS NOT PERMITTED.
10. Translations
This document has been originally drafted in the English language. The parties expressly agree and acknowledge that the English version of the document will prevail over any other language translation of this document.
11. Contact Crestron
If you have any questions, please contact Crestron.
Via e-mail: satisfaction@crestron.com, or support@crestron.com
Via post:
The Americas:
Crestron Electronics, Inc.
15 Volvo Dr.
Rockleigh, NJ 07647 USA
Europe, Middle East, and Africa (EMEA):
Crestron Europe BV
Stephensonstraat 20, bus 0001
2800 Mechelen, Belgium
VAT No. BE0699.717.121
Australia and New Zealand:
Crestron ANZ Pty. Ltd.
Level 6, 465 Victoria Ave
Chatswood NSW 2067, Australia
Asia:
Crestron Singapore Pte. Ltd.
30 Cecil Street
#21-05, Prudential Tower
Singapore 049712
Via phone:
Please visit www.crestron.com to find the phone number for Crestron support in your region.
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