Development Tools and Developer Forum – Terms and Conditions of Use
Effective Date: June 6, 2019
1.1. “Authorized Personnel” means any individual that is either: (a) authorized by You to access and use the Development Tools or Developer Forum on Your behalf; or (b) granted access to the Development Tools or Developer Forum by You. Authorized Personnel may include, but are not limited to, Your employees, consultants, contractors, and agents.
1.2. “Avigilon” means Avigilon Corporation (inclusive of its affiliates), the owner and licensor of the Development Tools.
1.3. “Avigilon Brand Standards” means the corporate brand standards of Avigilon, as constituted from time to time and as made reasonably available by Avigilon to You.
1.4. “Avigilon Product” means any product made or sold by Avigilon.
1.5. “Certified Product” has the meaning set forth in Section 2.5 below.
1.6. “Commercially Available” means, in respect of any Integrated Product, that such Integrated Product is being marketed, offered for sale, or being sold to any third party, or otherwise being commercialized by You.
1.7. “Developer Forum” means the online forum maintained by Avigilon and made available to You for the purpose of, amongst other things, providing You with information and support related to the Development Tools and associated Integration Programs.
1.8. “Development Tool” means: (a) any software development kit provided or made available to You by Avigilon; (b) any application programming interfaces, communication protocols, binary libraries, and sample code for interfacing with the Avigilon Products provided or made available to You by Avigilon; (c) any media, printed materials, and “on‐line” or electronic documentation with respect to such software development kit provided or made available to You by Avigilon (the “Documentation”) (including, without limitation, any instructions or similar materials related to the Avigilon Control Center software installer and the Avigilon Control Center Web Endpoint Service installer); and (d) any software or firmware provided or made available to You by Avigilon through the Developer Forum.
1.9. “End‐User” means a person or entity which acquires or uses an Integrated Product.
1.10. “Integrated Product” means any product created by or for the benefit of You pursuant to an Integration Program. For clarity, Integrated Products include Certified Products.
1.11. “Integration Program” means Your use of one or more Development Tools to integrate an Avigilon Product with a Partner Product.
1.12. “Intellectual Property” means all patents, patent applications, inventions, processes, Trademarks, copyrights, know how, trade secrets and other rights relating to the Development Tools, the Developer Forum, or any Avigilon Products or technology owned by, or licensed to, Avigilon.
1.13. “Party” means either Avigilon or You, as the context requires, and “Parties” means both Avigilon and You.
1.14. “Partner Documentation” means any documentation used by You in connection with the sale, marketing, use, maintenance and repairs of Certified Products, including but not limited to Your user guides, installation guides, data sheets, manuals, software intended for use by End‐Users, marketing material and splash screens.
1.16. “Partner Products” means those of Your products that You seek to integrate with any Avigilon Product using one or more Development Tools.
1.17. “Partner Trademarks” means Your trademarks, commercial symbols and logos now or in the future owned by or licensed to You, whether or not registered.
1.18. “Trademarks” means Avigilon trademarks, commercial symbols and logos now or in the future owned by or licensed to Avigilon, whether or not registered.
1.19. “You” (and any references to “Your”) means you, being the person or other legal entity that is the end user and licensee of one or more Development Tools and a user of the Developer Forum.
2. LICENSE AND USE OF DEVELOPMENT TOOLS
(a) Your internal development, testing and modification of Integrated Products;
(b) Your support and maintenance of Integrated Products;
(c) Your commercialization and distribution of Certified Products, if applicable; and
(d) Your reproduction and use of the Trademarks solely in connection with the marketing and sale of Certified Products.
2.2. Provision of Development Tools and Access to Developer Forum. In connection with the grant of the License, and subject to the limitations associated therewith, Avigilon shall provide You with:
(a) access to a copy of the Development Tools, downloadable by You from Avigilon’s designated location;
(b) in the case of Avigilon Products which include software, a temporary, downloadable specimen of such Avigilon Products for use by You to create and test the Integrated Products (for clarity, You may not make commercial use of any Avigilon Products so provided and Avigilon may, in its sole discretion, impose additional restrictions on the use of such Avigilon Products at any time);
(c) if applicable, and in Avigilon’s sole discretion, corrections, improvements, updates and upgrades to the Development Tools and the Avigilon Products and any part thereof (“Updated Products”) (upon receipt by You, such corrections, improvements, updates and upgrades will automatically be deemed to modify and form part of the Avigilon Products); and
(d) access to the Developer Forum (via a username and password (Your “Credentials”)), but only to the extent made available by Avigilon and which availability may be rescinded, suspended or terminated at any time by Avigilon at its discretion.
2.3. Reproduction of Code. To the extent required to carry out the Purpose, You may reproduce software code contained in the Development Tools, if any, for incorporation into the Integrated Products. You shall ensure that any such permitted copy of the Development Tools or software code therein that You make contains the same copyright and other proprietary notices and legends that appear on or in the Development Tools or software code, as applicable.
2.4. Additional Limitations. The License and Your use of the Development Tools is subject to the following conditions and limitations:
(a) Avigilon is not obligated to provide any assistance, field support or training in connection with the Integration Program;
(b) You may not decode, alter, decompile, reverse engineer, perform reverse analysis on or disassemble the Development Tools, any Intellectual Property, or any Avigilon Product;
2.5. Your Obligations. As a condition to the grant of the License to You, and Your use of the Development Tools and the Developer Forum pursuant to the License, You shall be subject to the following obligations, without limitation:
(a) You shall abide by all terms, conditions and limitations associated with the use of the License that are set forth, or otherwise provided for, in any of:
(ii) the Avigilon Brand Standards;
(iii) the Documentation; and
(iv) any other documentation provided by Avigilon to You in connection with the provision of the Development Tools, any Avigilon Products, or any Updated Products;
(b) You shall be solely responsible for integrating Avigilon Products with Partner Products and ensuring that the Integrated Products serve their intended purpose.
(c) You shall assume all costs, expenses and responsibilities related to the Integrated Products including, but not limited to, any support, training, and continued development that is given to End‐Users and all expenses related to the development, testing and commercialization of Integrated Products.
(d) Prior to any Integrated Product becoming Commercially Available, You shall demonstrate and certify to the satisfaction of Avigilon (as determined at Avigilon’s sole and reasonable discretion) that such Integrated Product functions as intended and does not compromise or degrade the usability or functionality of the associated Avigilon Product. Upon satisfying Avigilon in this regard, as must be evidenced only by Avigilon’s written confirmation of the same, such Integrated Product will thereafter be classified as a “Certified Product” and may be made Commercially Available by You.
(e) You shall ensure that Integrated Products maintain a level of quality comparable to the level of quality of the associated Avigilon Product(s), and comply with all regulations and approvals that may be required in the territory where Integrated Products are marketed or sold.
(f) You shall use commercially reasonable efforts to update Integrated Products with any Updated Products received from Avigilon and make such updated Integrated Products available to all End‐Users in order to ensure their continued compatibility with any updated technology of Avigilon.
(g) If a Certified Product becomes commercially unavailable or is discontinued, You shall provide written notice of same to Avigilon within 14 days of such unavailability or discontinuation or, if applicable, concurrently with any public announcement of such unavailability or discontinuation.
(h) If You or the End‐User is the government of the United States of America or any contractor therefor, You acknowledge and agree that the following provisions apply: (i) the Development Tools are provided to the U.S. government as commercial computer software, computer software documentation, or computer software and computer software documentation, provided with “restricted rights”, and under licenses customarily provided to the public to the extent such licenses are consistent with U.S. federal law and otherwise satisfy the U.S. government’s needs. Accordingly the U.S. government shall have only those rights specified in the License as per FAR 12.212 (for civilian agencies) and DFAR 227.7202‐1 and 227.7202‐4 (for the Department of Defense); and (ii) if said license fails to meet the U.S. government’s needs or is inconsistent in any respect with U.S. federal law, the U.S. government agrees to return the Development Tools, unused, to Avigilon.
(i) You shall use Your best efforts and take all reasonable steps to safeguard the Development Tools to ensure that no unauthorized person has access thereto and that no unauthorized copy or distribution, in any form, of the Development Tools is made.
(j) You shall treat Your Credentials as confidential, and accept responsibility for all activity at the Developer Forum conducted under Your Credentials.
(k) You shall ensure that: (i) any material, information, or other communication You transmit or post to the Developer Forum (Your “Contributions”) comply with all applicable laws; (ii) You have all the rights necessary to upload and share Your Contributions to the Developer Forum and that Your Contributions do not infringe the rights of any third party, including, but not limited to, any intellectual property rights or privacy rights of any third party.
(l) You hereby grant Avigilon a worldwide, royalty‐free, perpetual, non‐exclusive, irrevocable license to copy and display Your Contributions on the Developer Forum.
(m) If You wish to (i) use Avigilon’s logo or refer to Avigilon in Your marketing materials (including, but not limited to, in any website, launch announcement, press release, brochure, flyer or catalogue); or (ii) make any partnership announcement involving Avigilon, You agree to send Avigilon a proof of such material or announcement at firstname.lastname@example.org prior to publication. You agree that You shall only publish such material or announcement upon receipt of Avigilon’s prior written approval of same.
(n) When using the Developer Forum, You shall not:
(i) upload any viruses, worms, Trojan horses, or other forms of harmful or malicious computer code;
(ii) communicate any harmful, offensive, threatening, abusive, libelous, harassing, defamatory, vulgar, obscene, profane, hateful, fraudulent, sexually explicit, racially, ethnically, or otherwise objectionable material of any sort;
(iii) communicate any material that encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable law; or
(iv) use the information available on the Developer Forum for any marketing purposes, including but not limited to, sending unsolicited marketing materials to other users or uploading marketing material.
2.8. Export Restrictions. You acknowledge and agree that the Development Tools may be subject to restrictions and controls imposed by the Export and Import Permits Act (Canada) and regulations thereunder, the Export Administration Act of 1979 (United States) and regulations thereunder, and other applicable national and international laws and regulations relating to the export of the Development Tools (collectively, the “Export Laws”). You agree and certify that You shall not use the Development Tools or any part or direct product thereof for any purpose in contravention of the Export Laws.
3. INTELLECTUAL PROPERTY
3.2. Improvements. Any modification or improvement to all or part of the Development Tools or the Avigilon Products developed by You, or by Avigilon, whether along with, at the request of, or in collaboration with You (“Improvements”) will be the exclusive property of Avigilon as of its creation. You irrevocably and unconditionally convey, assign and transfer to Avigilon, without the necessity of any additional consideration received by You, all right, title and interest in and to such Improvements and all intellectual property therein, and confirm Your employees and contractors have waived any moral rights that they may have with respect to the Improvements. You also agree, at Avigilon’s expense, to perform all acts (including, but not limited to, executing applications and instruments of assignment) which Avigilon deems necessary or desirable from time to time in order to ensure that the rights in the Improvements vest in Avigilon.
3.3. Use of Trademarks. Avigilon consents to You using the Trademarks in any Partner Documentation provided that: (a) any such use does not, in Avigilon’s reasonable determination, portray Avigilon or Avigilon’s products in a negative light; and (b) any such use of the Trademarks is in accordance with the Avigilon Brand Standards and any intellectual property notices reasonably required by Avigilon from time to time. You shall not, at any time, assert any claim to the Trademarks (or use any confusingly similar mark). You shall not take any action that could be detrimental to the goodwill associated with the Trademarks or with Avigilon.
3.4. Use of Partner Trademarks. Avigilon may, from time to time, reference, describe or display Integrated Products in its product documentation, marketing materials or similar collateral (whether in electronic or hard copy format) that is made available to third parties and the public (the “Avigilon Materials”). You consent to Avigilon making reference to, describing or displaying the Integrated Products and any associated Partner Trademarks in the Avigilon Materials provided that: (a) any such reference, description or display is presented factually and accurately, and does not, in Avigilon’s reasonable determination, portray You or the Integrated Products in a negative light; and (b) any such use of Partner Trademarks is in accordance with any brand standards guidelines You explicitly provide to Avigilon or that are otherwise published and publicly available on Your website.
3.5. Infringement. If a Development Tool (or any portion thereof) is held or is believed by Avigilon to infringe intellectual property rights of a third party, Avigilon shall have the option, at its expense, to:
(a) modify such Development Tool, as applicable, to be non‐infringing; or
(b) obtain for You a license to continue using such Development Tool.
5. DISCLAIMER OF WARRANTY
(G) QUIET ENJOYMENT; OR (H) SYSTEM INTEGRATION. AVIGILON MAKES NO WARRANTY THAT ANY PORTION OF THE DEVELOPMENT TOOLS OR DEVELOPER FORUM WILL OPERATE ERROR‐FREE, FREE OF ANY SECURITY DEFECTS, OR IN AN UNINTERRUPTED MANNER. AVIGILON SHALL NOT BE RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF THE DEVICE(S) UPON WHICH THE DEVELOPMENT TOOLS ARE OPERATING, OR FOR PROBLEMS IN THE INTERACTION OF THE DEVELOPMENT TOOLS WITH NON‐AVIGILON SOFTWARE OR HARDWARE PRODUCTS. AVIGILON NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON PURPORTING TO ACT ON ITS BEHALF TO MODIFY OR TO CHANGE THIS WARRANTY, NOR TO ASSUME FOR AVIGILON ANY OTHER WARRANTY OR LIABILITY CONCERNING THE DEVELOPMENT TOOLS OR THE DEVELOPER FORUM. YOU MAY HAVE OTHER RIGHTS UNDER MANDATORY LAW THAT VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
6. LIMITATION OF LIABILITY
(b) “Discloser” means, in any given situation, the Party that is disclosing or has disclosed Confidential Information hereunder to the other Party.
(c) “Recipient” means, in any given situation, the Party to which Confidential Information is or has been disclosed hereunder from the other Party.
7.2. Treatment of Confidential Information. The Recipient shall: (a) not use any Confidential Information except solely in connection with the Purpose; (b) safeguard the Confidential Information against loss, theft, dissemination, relocation, or unauthorized use or disclosure and to preserve the Confidential Information’s secret and confidential nature, which standard will be no less than that which it affords to its own confidential information; (c) not disclose any Confidential Information except to those of its directors, officers, employees, contractors, advisors and authorized representatives, or those of its corporate affiliates, that have a bona fide need to know the specific Confidential Information in order for the Recipient to carry out the Purpose and who have each entered into a written nondisclosure agreement on terms no less onerous than those contained herein; (d) be responsible and liable hereunder for any breach of the confidentiality obligations hereunder by any such directors, officers, employees, contractors, advisors and authorized representatives as if same were a signatory hereto;
7.4. Return of Confidential Information. Immediately upon the termination of the License, each Party shall, at the Discloser’s discretion, return or destroy, all of the other Party’s Confidential Information held by it in whatever form and will not retain any copies thereof. If requested by either Party, each Party shall provide written certification of its compliance herewith.
8.1. Collection of Information. We may collect Your personal information in connection with Your use of the Developer Forum and the Developer Tools. Any processing of Your personal information will be in accordance with the Avigilon Privacy Statement, available at: http://avigilon.com/privacy-statement/. In addition, we may collect and track usage data based on Your use of and access to the Developer Forum and the Developer Tools for the purposes of internal recordkeeping and for improving the functionality of the Developer Forum and the Developer Tools. We may use “cookies” or other similar devices to enhance functionality and navigation for our users.
8.3. Term and Termination. The License shall continue as long as You are in compliance with the terms specified herein or until otherwise terminated by Avigilon at its discretion.
8.4. Return of Information. Immediately upon the termination of the License, You must, at Avigilon’s sole discretion, return or destroy, the Development Tools and all Avigilon Products held by You in whatever form and will not retain any copies thereof. If requested by Avigilon, You must provide written certification of Your compliance herewith.
8.9. Incorporation of ‘Open Source’ and other Third Party Software. Portions of the Development Tools may be subject to certain third party license agreements governing the use, copying, modification, redistribution and warranty of those portions of the Development Tools, including what is commonly known as ‘open source’ software. No warranty is provided by Avigilon for any such open source software. By using the Development Tools You agree to be bound to the terms of any such third party licenses. If provided for in the applicable third party license, You may have a right to receive source code for such software for use and distribution in any program that You create, so long as You in turn agree to be bound to the terms of the applicable third party license. If applicable, a copy of such source code may be obtained free of charge by contacting Your Avigilon representative.