NIAGARAAXDEVELOPER SUPPORT AGREEMENT

 

“Annual Renewal Date” shall mean January 1 of each calendar year.

 

“API” shall mean an Application-Programming Interface that supports development of applications and communication drivers for use with the NiagaraAX Framework.

 

“Certified NiagaraAX Developer” shall mean any individual employee or contractor of Developer who (i) has passed the Tridium NiagaraAX developer certification test and and (ii) for whom all annual fees set forth on Exhibit C per developer seat have been paid.

“Code” shall mean computer-programming code, and

 

“Binary Code” shall mean Code including but not limited to Java byte Code and Object Code in a form that is indirectly or directly executable by a computer, and is not readable or understandable by a programmer of ordinary skills.

 

“Object Code” shall mean Code substantially or entirely in binary form, and includes header files of the type necessary for use or interoperation with other computer programs.  It is intended to be directly executable by a computer after processing or linking, but without interpretation, compilation or assembly.

NiagaraAX Certified Developer Agreement

 

“Source Code” shall mean Code in a form which when printed out or displayed is readable and understandable by a programmer of ordinary skills.  It includes procedural and object oriented Code with associated comments describing the operation of the Code.

 

“Published Source Code” shall mean the Source Code in the docSource module of the NiagaraAX Framework.

 

“Confidential Information” shall mean any non-public information about a Party; the Party’s business, vendors, customers, products, services, employees; finances, costs, expenses, financial or competitive condition, policies, and practices; a Party’s research and development efforts, marketing and distribution efforts, licensing, cross-licensing, marketing and distribution practices; computer software programs and programming tools and their respective design, architecture, modules, interfaces, databases and database structures, non-literal elements, capabilities and functionality, Code, APIs, including without limitation the Licensed Materials, which are the Confidential Information of Tridium;  other information licensed or otherwise disclosed to a Party in confidence by a third party; the specific terms of this Agreement; and any other non-public information that does or may have economic value by reason of not being generally known.  “Confidential Information” does not, however, include information that: (i) is now or subsequently becomes generally available to the public through no fault or breach on the part of the receiving Party; (ii) the receiving Party can demonstrate to have had lawfully in its possession without an obligation of confidentiality prior to disclosure hereunder; (iii) is independently developed by the receiving Party without the use of any Confidential Information of the disclosing Party as evidenced by written documentation; (iv) the receiving Party lawfully obtains from a third party who has the right to transfer or disclose it and who provides it without any obligation to maintain the confidentiality of such information; or (v) is required to be disclosed by court order or operation of law.

 

“Developer Product” shall mean an application or applet developed by Developer using the Licensed Materials, provided however, Developer Product shall not include any Code from the Licensed Materials, and shall not include any derivative work based on any of the Licensed Materials.

 

 

“Early Releases” shall mean alpha and beta releases of the NiagaraAX Framework which have not been released commercially but have been made available to the Niagara developer community for testing.

 

“Effective Date” shall mean the date identified in the preamble of this Agreement

 

 

NiagaraAX Certified Developer Agreement

 

“Licensed Materials” shall mean the copy of the NiagaraAX Framework, and any other products listed on Tridium’s applicable price list as being available to Developers, that Developer has licensed, or hereafter licenses, from Tridium.

 

“Mark(s)” shall mean a Party’s trademarks, service marks, combination marks and logos that are licensed hereunder and identified on Exhibit A, and the phrase “Certified NiagaraAX Developer.”

 

“NiagaraAX Developer Program” or (“NAXDP”) shall mean the training program for Developer’s employees as described in Exhibit D attached hereto.

 

“Niagara AX Framework” shall mean the software, including the Licensed Materials, developed by Tridium for interconnecting devices and controllers.

 

“NiagaraAX Licensing Tool” shall mean Tridium’s proprietary software, in Binary Code, that permits the Developer to embed a license key into Developer Products to authorize Developer’s customers to use such products.

 

“Price List” shall mean the Developer Price List or the Price List applicable under Developer’s distributor or reseller agreement with Tridium if Developer is also an authorized Tridium distributor or reseller.

 

“Promotional Materials” shall mean any press release, product brochure and similar material, indicating Developer is a “Certified NiagaraAX Developer.

 

“Term,” “Initial Term” and “Renewal Term” shall have the meanings set forth in Section 10 below.

 

“Upgrades” shall mean any unspecified modification, error correction, bug fix, or other update or enhancement to or for the Licensed Materials.

DEVELOPER RIGHTS AND OBLIGATIONS RELATED TO LICENSE AND USE OF NIAGARAAX FRAMEWORK.

 

License of NiagaraAX Framework; Terms of License:  Developer has purchased, or shall purchase, a copy of the AX Supervisor component of the NiagaraAX Framework and may purchase other Licensed Materials, and has entered into, or will upon purchase of a copy of any of the Licensed Materials enter into, the End User License Agreement that is included with the Licensed Materials. Developer hereby represents that it has read and understands the End User License Agreement, and acknowledges that it is bound by the terms of the End User License Agreement in the form included with the copy(ies) of the Licensed Materials purchased by it from time to time, and that it has, and shall have, no rights in the Licensed Materials except as set forth in such agreements.  Specifically, but without limitation, Developer agrees that it shall not include in any Developer Product any Code included in the Licensed Materials.

 

 

Right to Early Releases.  Developer may license from Tridium any Early Release, and such license shall be without charge, provided that Developer is current in payment of all fees due.  All such software shall be for Developer’s internal use for evaluation purposes only, shall be used by Developer at its own risk and shall otherwise be subject to the terms and limitations included in the End User License Agreement accompanies the software.

NiagaraAX Certified Developer Agreement

 

NiagaraAX Certified Developer(s) On Staff.  Developer shall have at least one NiagaraAX Certified Developer on staff as an employee or contractor for each Developer home office and each other office at which it stations staff with responsibility for Developer regional engineering or customer support of Developer Products (a) within 90 days of the Effective Date, and (b) thereafter at all time during the entire Term of this Agreement.  Any one of or more of the following breaches of this Section 2.4 shall constitute a material breach giving Tridium the right to terminate under Section 10.2 below: (i) failure of Developer to comply with its obligations to be performed within 90 days of the Effective Date, (ii) failure to comply with its other obligations due to failure to timely pay the fees required to maintain the Certified NiagaraAX Developer status of at least one Certified NiagaraAX Developer on its staff, or (iii)  failure to comply with such obligations for any other reason for a period of at least 90 days.

 

By Developer. During the Term, Developer grants Tridium a right of publicity to use the Developer Marks described in Exhibit A in its Promotional Materials, financial reports, and prospectuses indicating Developer is a NiagaraAX Developer.

 

By Tridium.  After such time, and for so long as Developer has at least one employee who has completed the NAXDP training and passed a certification test as described on Exhibit D, Tridium grants Developer a right of publicity to use the Tridium Mark described in Exhibit A in its Promotional Materials, financial reports, and prospectuses indicating Developer has one or more Certified NiagaraAX Developer(s) on staff. Tridium may update Exhibit A with respect to the Tridium Mark at any time upon notice to Developer.  Developer shall adhere to the trademark guidelines attached as Exhibit B, which may be updated from time to time by Tridium upon notice to Developer.

 

Limitations.  Neither Party shall combine the other Party’s Marks with any other name or make use of any of the other Party’s Marks in its own trademarks, service marks, logos, or trade names; or make any use or presentation of the other Party’s Marks that would infringe, dilute, weaken, or otherwise damage or impair the other Party’s rights in its Marks.  The Parties shall not:  (i) challenge the other Party’s ownership or use of its Marks; (ii) register the other Party’s Marks; or (iii) incorporate any Mark of the other Party into its Marks, company name(s), internet domain name(s), or any other similar designations.  If Developer acquires any rights in Tridium Marks by operation of law or otherwise, it will immediately at no expense to Tridium, assign those rights to Tridium with any associated goodwill, applications and registrations.

 

Mark Usage Requirement. Developer acknowledges that Tridium is the owner of all right, title and interest in the Tridium Marks set forth on Exhibit A and Tridium acknowledges that Developer is the owner of all right, title and interest in the Developer Marks set forth on Exhibit A.

NiagaraAX Certified Developer Agreement

 

Tridium Support.  Tridium’s support responsibilities shall be in accordance with Exhibit D attached hereto.  Tridium shall have no obligation under this Developer Agreement to have direct contact with any customers to whom Developer may have distributed Developer Products.  All individual Developers (whether certified or not certified) have access to Tridium’s NiagaraAX Developer Support Forum, a website supported by Tridium which includes frequently asked questions and technical support notices related to the NiagaraAX Framework and the NiagaraAX Licensing Tool.

 

Scope of Support.  Tridium’s support responsibilities under this Developer Agreement are limited to assisting individual NiagaraAX Certified Developers who are retained by Developer as employees or contractors with standard Niagara-based application tools and Niagara driver development.  Tridium shall have no obligation under this Agreement to provide assistance for complex projects, or support requests requiring more than approximately four to six (4 - 6) hours of Tridium support to complete, are to be provided under the terms of a Professional Services Agreement (“PSA”) with Tridium.   “Complex” projects for this purpose include, by way of example, custom applications, on-site support, servlet application development engineering and core development engineering on the NiagaraAX Framework.

 

Training.  Tridium will provide NAXDP training to employees and contractors of Developer for which Developer requests such training on the terms and conditions set forth in Exhibit D attached hereto.

 

Early Access.  During the Term of this Developer Support Agreement, individual Certified NiagaraAX Developers shall have access to any Early Releases that Tridium may make available to the developer community as provided under Section 2.3 above.

8.

 

Confidential Information.  During the Term of this Agreement, the Parties acknowledge that Confidential Information may be disclosed by one Party to the other Party.

NiagaraAX Certified Developer Agreement

 

Obligations.  Except as otherwise expressly provided in this Agreement, each Party agrees to keep confidential the Confidential Information of the other disclosed during the Term of this Agreement, and to not disclose Confidential Information of the other to third parties except for confidential disclosures made to directors, officers, employees, consultants, counsel, accountants, professional advisers and other agents of the Party or its Affiliates whose duties justify access to such Confidential Information to perform such Party’s obligations or exercise its rights hereunder, and who have each agreed to comply with nondisclosure protections at least as protective of the other Party’s Confidential Information as those in this Section and to use such Confidential Information solely for the purposes set forth in this Agreement.  Each Party agrees that its obligations with respect to the other Party’s Confidential Information shall survive for (i) a period of three (3) years following receipt of such Confidential Information related to the disclosing Party’s general business information and (ii) indefinitely with respect to any Confidential Information related to the disclosing Party’s trade secrets or know-how.  During the Term of this Agreement, each Party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information to prevent the duplication or disclosure of Confidential Information of the other Party.  Each Party shall use its best efforts to cause any third parties that may come into possession of any Confidential Information to maintain the confidentiality of such information.

 

DISCLAIMER OF WARRANTY. Developer acknowledges that the training and certification provided under this Agreement  are intended to convey information about the essential functions of the Licensed Materials, and to certify demonstration of a reasonable level of knowledge of such functions to Tridium, but that neither training nor certification is intended to, or does, indicate that any individual (i) has the knowledge or ability to, or will in any particular case, cause the Licensed Materials or any Developer Product to perform in a given environment, configuration or situation as desired or in a safe or appropriate manner, or (ii) will in any particular case train individuals in use of such materials in an acceptable manner.  Developer further acknowledges that the support services provided under Exhibit D are primarily to assist Developer in understanding use of the Niagara Framework in connection with Developer’s development of Developer Products, but not to perform development services, and that Developer is solely responsible for its Developer Products whether or not any support services supplied under this Agreement relate in part to development of a Developer Product.  The Training and Support services provided under this Agreement are provided AS IS AND WITHOUT ANY WARRANTY OF ANY KIND.

 

LIMITATION OF LIABILITY.   NEITHER TRIDIUM NOR ANY OF ITS LICENSORS, OFFICERS, AGENTS, EMPLOYEES OR REPRESENTATIVES SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR PENALTIES (INCLUDING DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA, BUSINESS INTERRUPTION, AND THE LIKE), HOWEVER THEY ARISE, INCLUDING WITHOUT LIMITATION FROM THE USE BY DEVELOPER OF THE LICENSED MATERIALS, WHETHER FOR BREACH OR IN TORT, EVEN IF TRIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

Term.  This Developer Agreement shall commence on the Effective Date and, unless terminated as provided for herein, shall run through the Annual Renewal Date (the “Initial Term”).  Upon expiration of the Initial Term, this Developer Agreement shall automatically renew for up to three successive one-year terms (each, a “Renewal Term”)unless, at least thirty (30) days prior to the expiration of the then-applicable Initial Term or Renewal Term, either Party gives the other written notice of its election not to renew.  In the event of such election not to renew, this Developer Agreement shall expire automatically at the end of the then applicable term.  References herein to the “Term” shall include the Initial Term and any Renewal Term.

NiagaraAX Certified Developer Agreement

 

Termination for Cause.  Either Party may terminate this Developer Agreement upon a material or continuing breach of this Developer Agreement by the other by giving thirty (30) days prior written notice of termination, stating the cause therefore.  If within the 30-day notice period, the cause for termination is not cured to the satisfaction of the Party giving notice, the termination shall become effective at the close of the 30-day notice period.

 

Termination Upon Events of Default.  This Developer Agreement may be terminated immediately, upon the giving of written notice as follow:

 

10.3.1

By Tridium if Developer makes unauthorized use of, or authorizes unauthorized use of or disclosure of, Tridium’s Confidential Information or uses any part of the Licensed Materials other than as expressly permitted by the End User License Agreement or another written agreement signed by Tridium;

 

10.3.2

By Tridium if Developer assigns or transfers this Developer Agreement or attempts to do so without complying with the provisions of Section 11.2;

 

10.3.3

By either Party if the other Party is indicted for the violation of any law or regulation material to the performance of its duties hereunder.

 

10.3.4

By Tridium if a governmental or regulatory body imposes restrictions or denies authority for Developer to perform the duties required of it pursuant to this Developer Agreement.

 

10.3.5

By Tridium if Developer (a) ceases to do business in the normal course, (b) becomes or is declared insolvent or bankrupt, (c) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary), other than a reorganization under Chapter 11 of the Bankruptcy Code, which is not dismissed within ninety (90) calendar days, or (d) makes an assignment for the benefit of creditors.

 

Independent Contractor. Developer and Tridium are independent business entities, bound to each other only as provided for herein.  Developer has no authority to bind, act on behalf of or represent Tridium except to the limited extent Developer is expressly authorized herein.  Nothing in this Agreement creates a relationship of employer-employee, principal and agent, master and servant or franchisor and franchisee.  Developer covenants that it shall not act or fail to act in any way that could reasonably cause others to believe that it has authority to act on behalf of Tridium beyond the authority expressly granted herein.

 

Assignment.  Neither Party shall have the right to assign this Agreement or its rights and obligations under this Agreement, directly or indirectly, by merger or otherwise, without the prior written consent of the other.  Notwithstanding the foregoing, Developer agrees that: (a) Tridium may assign its rights and obligations to any purchaser of substantially all of its business; (b) Tridium may assign this Agreement to an Affiliate; and (b) Tridium may appoint subcontractors and sublicensees to provide all or part of the goods or services hereunder, subject to the other terms of this Agreement.  This Agreement shall be binding upon and inure to the benefit of each Party's successors and authorized assigns.

 

Equitable Relief. Each Party acknowledges that any breach of its obligations hereunder with respect to the Licensed Materials or the Confidential information of the other Party will cause the non-breaching Party irreparable injury for which it has no adequate remedy at law, and therefore that the non-breaching Party will be entitled to seek and obtain equitable relief, including preliminary injunctions and temporary restraining orders, to prevent any unauthorized use of the non-breaching Party’s Confidential Information, in addition to all other remedies available to it under this Agreement or other applicable law.  The Parties also agree that any breach by Developer of its obligations with respect to the Licensed Materials shall give Tridium the right to equitable relief as set forth herein.

NiagaraAX Certified Developer Agreement

 

Headings.  The headings in this Agreement and its Exhibits are for the convenience of the reader and shall not limit or alter the meaning of any term of this Agreement.

 

Waiver.  A waiver of any breach of default of this Agreement shall not create a waiver of the term or of any subsequent breach of default.

 

Governing Law.  The validity of this Agreement and the rights, obligations and relations of the Parties hereunder shall be construed and determined under and in accordance with the substantive laws of the Commonwealth of Virginia with respect to claims governed by state law, excluding the Uniform Computer Information Transactions Act of Virginia,  and the laws of the United States with respect to claims arising under the laws of the United States, without regard to conflicts of laws principles and excluding the Convention on Contracts for the International Sale of Goods. Any action arising from or relating to this Agreement or the conduct of the Parties pursuant hereto shall be commenced and heard solely within a federal or state court of competent jurisdiction found within the boundaries of the United States District Court for the Eastern District of Virginia, Richmond Division, and Tridium and Developer each consent to personal jurisdiction and venue in any such court.

 

Notices.  Any notice required or allowed to be delivered hereunder shall be effective only if served by personal service, first class or certified (return receipt requested) U.S. mail, confirmed facsimile transmission, email (return receipt requested) or express carrier (e.g., Fed Ex) to the Key Contact at the address of the receiving Party set forth below.  Either Party, by notice to the other, may designate any other individual, address or number in place of those shown below.

 

Survivability.  Any term or provision of this Agreement, or portion thereof, which by its nature survives the termination or expiration of this Agreement, shall so survive.

 

Force Majeure.  Neither Party shall hold the other responsible for any delay or failure of performance to the extent directly caused by strike, riots, fire, insurrection, embargoes, failure of carriers, inability to obtain materials or transportation facilities, acts of God or of the public enemy, or other causes beyond the control of that Party, irrespective of whether the cause could be alleviated by the payment of money.

NiagaraAX Certified Developer Agreement

Severability.  Should any term or provision of this Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term shall be modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of law and the remainder of this Agreement (or, as the case may be, the application of such provisions to other circumstances) shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law.

Entire Agreement.  This Agreement, including its Exhibits (which are hereby incorporated by reference), comprises the entire agreement between the Parties relating to its subject matter.  This Agreement supersedes all prior agreements and understandings, written or oral, express or implied.  This Agreement can be amended or modified only by a writing executed in advance by duly authorized representatives of each of the Parties hereto.  THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY DEVELOPER IS EXPRESSLY MADE CONDITIONAL ON DEVELOPER’S ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN DEVELOPER’S PURCHASE ORDER

Order or Precedence:  To the extent that anything contained in the End User License Agreement is inconsistent with any other provision of this Developer Agreement, such other provisions shall control.

NiagaraAX Certified Developer Agreement

 

B.

Certified NiagaraAX Developer Logo:

NiagaraAX Certified Developer Agreement

NiagaraAX Certified Developer Agreement

 

Contract Set-up Fee.  See Developer Price List in effect as of the effective date of the Developer Support Agreement.

 

Licensed Materials.  See Developer Price List or the applicable Price List if Developer is also an authorized Tridium distributor or reseller for price in effect as of date of order.

 

Training Fees for NAXDP Training.  See Developer Price List as of date of registration.

 

Developer Seat Annual Fee – See Developer Price List.  Pro-rated amount due for each NiagaraAX Certified Developer retained by Developer, either as an employee or contractor, upon the earlier of (i) retention of such employee or contractor, or (ii) successful completion by such employee or contractor of the Developer training class; annual fee due and on each Renewal Date.

 

Technical Support.  Developer shall pay for technical support provided under Section 6.1 and Exhibit D at Tridium’s regular hourly rate for such support in effect as of the date the support is provided as set forth on the Developer Price List, as of the date such support hours are purchased.

 

F.

NiagaraAX Licensing Tool.  See the Developer Price List for the up-front and annual renewal charges for this tool.  This Licensing Tool may be purchased at any time after the Effective Date.

NiagaraAX Certified Developer Agreement

NiagaraAX Certified Developer Agreement

NiagaraAX Certified Developer Agreement

i.

in, into or through any country designated as a terrorist supporting country by the U.S. government or any of its agencies;

ii.

in, into or through any country which the U.S. has an embargo or with which the U.S. or any of its agencies maintains comprehensive trade controls;

iii.

to or by a national or resident of the countries described in (i) or (ii); or

NiagaraAX Certified Developer Agreement

iv.

to or by any party included in the United States Department of Commerce’s Denied Persons List, Entity List or Unverified List; or the United States Department of the Treasury’s Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers, or Specially Designated Terrorists List; or the United States Department of State’s Designated Foreign Terrorist Organizations or Debarred Persons List; or is otherwise designated by the U.S. government or any of its agencies as a party with which it is unlawful to do business.

NiagaraAX Certified Developer Agreement