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Software License

SOFTWARE LICENSE AND PROPRIETARY INFORMATION AGREEMENT

IMPORTANT: PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING THIS AGREEMENT AND/ OR INSTALLING AND USING THE HOMESEER SOFTWARE (the "SOFTWARE") OR INSTALLING THE HOMESEER SOFTWARE.  BY ACKNOWLEDGING THIS AGREEMENT OR INSTALLING OR USING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND PROPRIETARY INFORMATION AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND HOMESEER TECHNOLOGIES, LLC.  ("HOMESEER").

LICENSEE'S RIGHTS OF USE:

For consideration of the payment of the license fee, the SOFTWARE and all accompanying manuals and other materials (“Written Materials”) provided to you are licensed to you on a non-exclusive basis for use only under the terms of this Agreement.  HOMESEER reserves all rights not expressly granted herein. You acknowledge that the SOFTWARE and Written Materials are copyrighted and protected under copyright law.  You further acknowledge the proprietary nature of the SOFTWARE and Written Materials.
You may install the SOFTWARE on only one computer at a single location unless expressly specified otherwise by HOMESEER in writing.  You agree that all copyright and other proprietary notices associated with the SOFTWARE shall be visible to all users of the SOFTWARE.
You may retain the enclosed SOFTWARE for backup and archival purposes.  
You may use the SOFTWARE in machine-readable form only.

RESTRICTIONS

You and your employees and agents are required to protect the confidentiality of the SOFTWARE and Written Materials.  Except as provided in Section 3 above, you may not copy, distribute, disclose or otherwise make the SOFTWARE or Written Materials available to any third party.
You may not alter, modify, adapt or create derivative works based on any part of the SOFTWARE or Written Materials in any way, including translating, reverse engineering, disassembling or decompiling the SOFTWARE.  
You agree that you do not have any title or ownership of the SOFTWARE or Written Materials, other than ownership of the physical media.
You acknowledge that the SOFTWARE and Written Materials contains proprietary information of HOMESEER
You may not sell, distribute, loan, rent, lease, license, sublicense or otherwise assign or transfer this license or the SOFTWARE or Written Materials unless expressly authorized in writing by HOMESEER  
HOMESEER SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

HOMESEER shall retain all and sole right, title, interest and copyright in and to the SOFTWARE and Written Materials.  By virtue of this Agreement, you obtain the right to use the SOFTWARE and Written Materials only.  You agree not to remove any copyright or other proprietary or product identification notices from the SOFTWARE and Written Materials.  HOMESEER retains all rights not expressly granted.  United States copyright law and international treaty provisions protect the SOFTWARE and Written Materials.

TERMINATION

This Agreement is effective from the date you open this package containing the SOFTWARE and/or install the SOFTWARE, and shall remain in force unless otherwise specified in writing by HOMESEER  This Agreement shall terminate immediately if you fail to comply with any of the terms or conditions of this Agreement.   Upon termination, you shall immediately return to HOMESEER all copies of the SOFTWARE together with all copies of any Written Materials to HOMESEER   You may terminate this Agreement at any time by returning all copies of the SOFTWARE together with all copies of any Written Materials to HOMESEER.

NO WARRANTIES

THE SOFTWARE AND WRITTEN MATERIALS ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND AND HOMESEER DOES NOT WARRANT THAT THE SOFTWARE OR WRITTEN MATERIALS WILL BE ERROR FREE.  HOMESEER SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF HOMESEER WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) ARISING OUT OF THE PERFORMANCE OF THE SOFTWARE OR ITS FAILURE TO PERFORM  EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE AND WRITTEN MATERIALS. THIS INCLUDES BUT IS NOT LIMITED TO INJURY, DAMAGE, OR DESTRUCTION CAUSED BY THE ACTIVATION OF ANY DEVICE, X10, OR OTHERWISE CAUSED BY THIS SOFTWARE.
Software plugins by HomeSeer and by 3rd party developers often rely on software APIs from other companies for integration with HomeSeer. Should those APIs be altered or disabled, integration with HomeSeer may be broken at any time. For this reason, the service life of any plugin cannot be guaranteed. Therefore, plugins are sold or distributed by HomeSeer ‘as is’ without a warranty.

LIMITATION OF LIABILITY

IN NO EVENT SHALL HOMESEER BE LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, FOR COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR USE, OR BUSINESS INTERRUPTION) ARISING OUT OF THE PERFORMANCE OF THE SOFTWARE, EVEN IF HOMESEER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; IN ADDITION, HOMESEER SHALL NOT BE LIABLE FOR ANY CLAIMS IN TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY).

EXPORT ADMINISTRATION

If the SOFTWARE or Written Materials are for use outside of the United States, you agree to comply fully with all relevant regulations of the United States Department of Commerce and with the United States Export Administration Act to insure that the SOFTWARE and Written Materials are not exported in violation of United States law.

GOVERNING LAW

This Agreement shall be construed and enforced in accordance with the laws of the State of New Hampshire.  You consent to the personal jurisdiction of the courts of the State of New Hampshire.

HOMESEER'S REMEDIES

Each party recognizes that money damages alone would not adequately compensate HOMESEER in the event of a breach by you of this Agreement, and you, therefore, agree that in addition to all other remedies available at law or in equity, HOMESEER shall be entitled to injunctive relief for the enforcement of this Agreement, without the need to prove actual damages or to post a bond.  Failure by HOMESEER to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such terms, covenants or conditions.  The parties agree that the prevailing party in any action brought to enforce the legal rights provided herein shall be entitled to full reimbursement of its costs, including its reasonable attorneys' fees and costs, associated with any such action.

ENTIRE AGREEMENT

This Agreement expresses the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, commitments and understandings pertaining to the subject matter hereof.  Any modifications or changes to this Agreement shall be in writing and signed by both parties.
If any of the provisions of this Agreement, or portions thereof, are declared under statute or applicable law to be invalid, such provisions shall be deemed separable from the remaining provisions of the Agreement and shall not impair the validity or enforceability of the remaining provisions of the Agreement.  
Government Contracts.   The SOFTWARE constitutes “restricted rights Software” for purposes of government contracting and subcontracting and therefore, you shall ensure that the rights granted to any United States Government or United States Government subcontractor, licensee or sublicensee shall be only those minimum “restricted rights” described in FAR 52.227 or DFARS 252.227-7013 or their successor regulations, whichever is applicable.  You shall place and require your customers to place or retain (as applicable) appropriate “restricted rights” legends upon all copies of the SOFTWARE in accordance with the FAR and DFAR regulations specified above.
Enforcement. The Software may use the Internet to verify the ownership of this license. Any information exchanged during this transfer is used solely for the purpose of verifying the validity of the license.