END USER LICENSE AGREEMENT

FOR STERLING RANCH STEWARD SOFTWARE APPLICATIONS

 

IMPORTANT – READ CAREFULLY:  This End-User License Agreement (“EULA”) is a legal agreement between You (either an individual, a legal entity or any affiliated companies or other entities) and Lumiere Technologies, LLC. as the licensor (“Licensor” or “Lumiere”). The EULA authorizes You to use the LICENSED SOFTWARE under the terms and conditions set forth below. Read this EULA carefully before signing this EULA or using the LICENSED SOFTWARE.

 

 

  1. LICENSED SOFTWARE. As used in this EULA, the term “LICENSED SOFTWARE” means (i) Lumiere’s and/or 3rd party software embedded in or installable in the STEWARD equipment product (“Equipment”) separately offered to you. Such software includes multiple functional applications (each a “Software Application”) that are combined in a single software package having a brand name of “STEWARD”, but each Software Application is licensed separately with a respective license key for activation in any release of the foregoing, and (ii) any related media, printed materials, and “online” or electronic documentation. The Software Applications in the LICENSED SOFTWARE may include any or all of the Software Applications below:
    • STEWARD GUI
    • STEWARD Mobile Application
    • Siemens SEM3
    • ScadaMetrics
    • HomeSeer HS3
    • HomeSeer Z-Wave Plug-in
    • HomeSeer DSC Security Plugin
    • HomeSeer Rachio Plugin
    • HomeSeer Utilities Plugin
    • HomeSeer Nest Plugin
    • HomeSeer Ecobee Plugin
    • Any other HomeSeer plugins
    • MyHS HomeSeer Cloud
    • Android OS
    • Rachio Software
    • Blue Mail Android Applicaton
    • Cisco RV340 VPN Router Firmware
    • DynDNS
    • Other Future Software Applications as they become available for integration with STEWARD
  2. Certain Software Applications may have separate end user license agreements (“Third-Party EULAs”), The terms of any Third-Party EULAs (if any) that apply to the LICENSED SOFTWARE: (i) separately accompany the LICENSED SOFTWARE; and/or (ii) are automatically presented for acceptance prior to first use of the Software Application (as checked above) of the LICENSED SOFTWARE by You and other users You allow access to the LICENSED SOFTWARE in accordance with the license keys You obtained from Lumiere. The terms of such Third-Party EULAs are incorporated by reference as though fully set forth herein.

 

  1. The Licensed Software may contain certain components such as open source software components or third party components licensed by Lumiere, its licensors or affiliates (each, a “Component”). Each Component may have a separate end user license agreement (a “Component EULA”). The terms of any Component EULA (if any) that apply to the LICENSED SOFTWARE: (i) separately accompany the LICENSED SOFTWARE; and/or (ii) are automatically presented for acceptance prior to first use of the Software Application (as checked above) of the LICENSED SOFTWARE by You and other users You allow access to the LICENSED SOFTWARE in accordance with the license keys You obtained from Lumiere, and/or (iii) are specified in the READ ME OSS document available at “WWW.USA.SIEMENS.COM/BTCPSEULA” for the LICENSED SOFTWARE. The terms of such Component  EULAs are incorporated by reference to this EULA as though fully set forth herein.

 

  1. Each Software Application (as selected above) functions as a client application, plug-in or interface to the LICENSED SOFTWARE and may be utilized upon acceptance of this EULA by You and may be subject to obtaining the appropriate license key from Lumiere as set forth in Section 4.

 

  1. BY SIGNING, AND/OR ACCEPTING THIS END USER LICENSE AGREEMENT BY CLICKING THE “END USER ACCEPT”, OR BY OTHERWISE BY INSTALLING, COPYING, OR OTHERWISE USING THE LICENSED SOFTWARE YOU ACKNOWLEDGE THAT YOU: (1) HAVE READ AND UNDERSTOOD THIS EULA, INCLUDING ANY THIRD PARTY EULAS AND COMPONENT EULAS INCORPORATED HEREIN; AND (2) AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS EULA AND SUCH ADDITIONAL TERMS OF THE THIRD-PARTY AND COMPONENT EULAS. FURTHERMORE, YOU CONFIRM THAT YOU HAVE THE POWER TO MAKE SUCH A DECLARATION ALSO FOR YOUR COMPANY. YOU FURTHER AGREE THAT IF LUMIERE OR ANY LICENSOR OF LUMIERE IS REQUIRED TO ENGAGE IN ANY PROCEEDING, LEGAL OR OTHERWISE, TO ENFORCE THEIR RIGHTS UNDER THIS EULA, LUMIERE AND/OR ITS LICENSOR SHALL BE ENTITLED TO RECOVER FROM YOU, IN ADDITION TO ANY OTHER SUMS DUE, REASONABLE ATTORNEY’S FEES, COSTS AND DISBURSEMENTS UNLESS OTHERWISE AGREED IN A SEPARATE WRITING BETWEEN THE PARTIES. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS EULA, YOU ARE NOT ENTITLED TO INSTALL OR USE THE LICENSED SOFTWARE. IN SUCH AN EVENT, YOU SHOULD PROMPTLY CONTACT LUMIERE FOR INSTRUCTIONS ON RETURN OR CERTIFIED DESTRUCTION OF THE LICENSED SOFTWARE.

 

  1. INTELLECTUAL PROPERTY RIGHTS NOTICE. The LICENSED SOFTWARE and all rights, without limitation including proprietary rights therein (including any all copyrights, patents, trademarks, trade secrets, and publicity rights), are owned by Lumiere, its licensors or affiliates. The LICENSED SOFTWARE is protected for Lumiere, its licensors or affiliates on the basis of copyright law and international treaty provisions and all applicable national laws as well as on the basis of other laws and agreements regarding intellectual property. The structure, organization, and code of the LICENSED SOFTWARE are the valuable trade secrets and confidential information of Lumiere, its licensors or affiliates. Except as expressly and unambiguously provided herein, You do not possess, and Lumiere does not grant to You, any express or implied rights (whether by implication, estoppel or other legal theory) in or to any such intellectual property rights and all such rights are retained by Lumiere, its licensors or affiliates. You must reproduce and include the copyright notices with any permitted copies You make of the LICENSED SOFTWARE.
  2. LICENSE GRANT. The LICENSED SOFTWARE is not sold to You. Subject to the terms and conditions of this EULA, Lumiere grants to You a revocable, non-transferable, non-exclusive license to use the LICENSED SOFTWARE in object code only as residing in the Equipment provided and for accessing and uploading the Software Application, as checked above. Lumiere, in its discretion, may withhold distribution of any license key for use of the LICENSED SOFTWARE by You until an executable version of this EULA is signed by the Parties.

 

  1. LIMITATIONS ON LICENSE.

 

  1. a) After the Software Application (as checked above) is uploaded and installed on the Equipment in compliance with this EULA, You may only keep a single copy of the uploaded Software Application on storage medium employed in or used with the Equipment. If this Software Application is erased from or damaged on the storage medium, You may upload and install another copy of this Software Application from the Equipment. Unless specifically stated otherwise in this EULA, You may under no other circumstances make copies of the LICENSED SOFTWARE or of the printed materials which are enclosed with the LICENSED SOFTWARE.
  2. If this LICENSED SOFTWARE includes any related documentation provided in electronic form, You may print copies of this electronic documentation for your use. You must reproduce and include the copyright notices on any permitted copies You make of such electronic documentation.
  3. c) You may not sublicense, rent, lease, assign or transfer this EULA, the LICENSED SOFTWARE or its components, or any portion thereof without express written consent from Lumiere. Except, in the event that you sell or otherwise transfer the Equipment to a third party, you may assign this EULA for the LICENSED SOFTWARE installed in such Equipment to such third party provided that the third party agrees to accept such assignment subject to all terms and conditions of this EULA.
  4. d) You may not or direct any third party to, reverse engineer, decompile, or disassemble the LICENSED SOFTWARE; You acknowledge that use rights granted to You under this EULA are strictly limited to use of the LICENSED SOFTWARE in object form only as provided to you by Lumiere.
  5. e) You (or any third party at your direction) also shall not (i) modify or create a derivative work of the LICENSED SOFTWARE, or (ii) extract any individual parts except when and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
  6. f) This EULA does not grant You any rights whatsoever in relation the trademarks or service marks of Lumiere, or its licensors or their affiliates.

 

  1. MISUSE OF THE LICENSED SOFTWARE OR DATA GENERATED BY THE LICENSED SOFTWARE IS STRICTLY PROHIBITED BY LICENSOR, MAY VIOLATE U.S. AND OTHER LAWS AND MAY SUBJECT YOU TO SUBSTANTIAL LIABILITY. You are solely responsible for any misuse of the LICENSED SOFTWARE under this EULA and for any liability or damage related in any way to your use of the LICENSED SOFTWARE in violation of this EULA.

 

  1. ADDITIONAL TERMS FOR THIRD PARTY COMPONENTS. This EULA applies to updates, releases, revisions, enhancements, or supplements to the original LICENSED SOFTWARE provided by Licensor or its licensors (“Updates”) unless otherwise specified by Licensor or its licensors. In the event that Licensor or its licensors require You to agree to additional terms before accessing or installing any Update, You acknowledge that your access to the Update and/or the LICENSED SOFTWARE may be restricted until you agree to such additional terms..

 

  1. OTHER THIRD PARTY SOFTWARE NOT PROVIDED. Except where the parties agree in writing to the contrary, you are solely responsible for ensuring that: (a) the system on which the LICENSED SOFTWARE is installed, run and/or used contains all third party software not contained in or bundled with the LICENSED SOFTWARE as delivered and that is necessary to run, install and/or use such LICENSED SOFTWARE (“Other Third Party Software”) and (b) You and/or your system fulfill the requirements of all required licenses for such Other Third Party Software.

 

  1. TERM AND TERMINATION.

 

  1. This EULA is effective from the first date You: (i) install, copy, access any Software Application checked above; or (ii) otherwise use the LICENSED SOFTWARE; or (iii) authorize Lumiere to install and activate any Software Application of the LICENSED SOFTWARE on the any computer or device.

 

  1. The term of use of each Software Application of the LICENSED SOFTWARE for which You obtained a license key from Lumiere or its licensors shall be governed by the term provided with the respective license key. If no term is provided with the license key for a Software Application of the LICENSED SOFTWARE, then the term of use for that Software Application shall be perpetual unless this EULA is otherwise terminated as set forth in this Clause.

 

  1. Without prejudice to any other rights of Licensor, this EULA shall terminate automatically and immediately without notice if You fail to comply with any provision or condition of this EULA or any applicable Third-Party EULA. In such a case, You will be obliged to destroy all copies, all related materials of the LICENSED SOFTWARE and all its components, as well as any Confidential Information provided to you by Licensor.

 

  1. CONFIDENTIALITY AND DATA PROTECTION.

 

  1. “Confidential Information” shall be deemed to include any and all non-public information of any form obtained or learned by each party or its representatives in connection with this EULA, regardless of whether such information is marked or identified as confidential, including, but not limited to, any prices, information, trade secrets, processes or documentation obtained in connection therewith or related thereto, and information regarding either party’s business practices, policies, and strategies, technology systems and platforms, all information regarding either party’s clients and specifically including all intellectual property of either party. Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain other than as a result of an unauthorized disclosure by a party, (ii) was already in the possession of a party prior to the first date of signature below and free of any actual or constructive knowledge of any obligation of confidentiality with respect thereto, (iii) is disclosed to a party by a third party having no obligation of confidentiality with respect thereto, (iv) is independently developed by a party without reference to the other party’s Confidential Information, (v) is released from confidential treatment by written consent of a party, or (vi) is required or requested to be disclosed pursuant to law, court order, subpoena or governmental authority.

 

  1. You agree to keep Lumiere’s Confidential Information (as defined above) in confidence and not to use such Confidential Information except in performing hereunder. Except as expressly authorized herein, You agree to: (i) treat all Confidential Information of Lumiere in the same manner as You treat your own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (ii) disclose Lumiere’s Confidential Information only to your employees, contractors or professional advisors who have a need to know such information for the purposes of this EULA, provided that any such employee and contractor shall be subject to a binding written agreement with respect to such Confidential Information at least as restrictive as the terms and conditions of this EULA, and You shall remain solely liable for any non-compliance of such employee or third party with the terms and conditions of this EULA.

 

  1. WARRANTY DISCLAIMER. Unless Lumiere agrees in a separate writing to provide an exception to this warranty disclaimer with respect to the LICENSED SOFTWARE, Lumiere shall be only liable for defects and any violation of property rights as set forth in this Clause as follows:

 

  1. a) YOU ACKNOWLEDGE THE LICENSED SOFTWARE IS PROVIDED “AS IS”, THE LICENSOR DOES NOT WARRANT THAT (i) THE LICENSED SOFTWARE SHALL OPERATE WITH ANY HARDWARE OTHER THAN THE EQUIPMENT IN WHICH THE LICENSED SOFTWARE WAS PROVIDED BY LUMIERE AND SOFTWARE OTHER THAN THE FIRMWARE PROVIDED BY LUMIERE IN SUCH EQUIPMENT OR AS SPECIFIED IN THE APPROPRIATE LICENSED SOFTWARE REFERENCE MANUAL SUPPLIED BY LUMIERE, (ii) THE LICENSED SOFTWARE SHALL SATISFY YOUR OR THE CUSTOMER’S OWN SPECIFIC REQUIREMENTS, (iii) COPIES OF THE LICENSED SOFTWARE OTHER THAN THOSE PROVIDED OR AUTHORIZED BY LICENSOR SHALL POSSESS FUNCTIONAL INTEGRITY, OR (iv) THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

 

  1. b) NIETHER LUMIERE NOR ANY OF ITS LICENSORS (IF ANY) MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OPERABILITY OF MODIFICATIONS TO THE LICENSED SOFTWARE NOT MADE BY LUMIERE OR ITS LICENSORS, OR THAT THE LICENSED SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. LUMIERE DISCLAIMS ALL OBLIGATIONS AND LIABILITIES ON THE PART OF LUMIERE AND ITS LICENSORS FOR DAMAGES TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT, AND CONSEQUENTIAL DAMANGES (EVEN IF LUMIERE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), AND WITH RESPECT TO ATTORNEY’S AND EXPERTS’ FEES AND COURT COSTS IN AN ACTION WITH A THIRD PARTY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE BY LICENSEE, OR ANY THIRD PARTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A LUMIERE REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY AFFECT THIS DISCLAIMER. YOU ASSUME ALL RESPONSIBILITY TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.

 

  1. c) ANY FURTHER RIGHTS AND REMEDIES OTHER THAN THOSE AS PER THIS CLAUSE (IN PARTICULAR YOUR RIGHT TO CLAIM DAMAGES) BASED ON A DEFECT OR A VIOLATION OF PROPERTY RIGHTS SHALL BE EXCLUDED. THIS EXCLUSION SHALL NOT APPLY IN THE EVENT OF GROSS NEGLIGENCE, UNLAWFUL INTENT OR INSOFAR AS MANDATORY LAW PROVIDES OTHERWISE.

 

  1. NO OTHER OBLIGATIONS; RESERVATION OF RIGHTS. This EULA creates no obligations on the part of Lumiere or its licensors other than as specifically set forth herein. Licensor reserve all rights not expressly granted to You in this EULA.

 

  1. LIMITATION OF LIABILITY. UNLESS OTHERWISE AGREED IN A SEPARATE WRITING BETWEEN THE PARTIES, IN NO EVENT SHALL LUMIERE, ITS EMPLOYEES, LICENSORS, AFFILIATES, AGENTS, AND THEIR AFFILIATES, INCLUDING WITHOUT LIMITATIO SIEMENS INDUSTRY, INC. AND ITS AFFILIATES, BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY, OR ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF LUMIERE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THIS EULA TO THE CONTRARY, LICENSOR’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR EXPENSES ARISING OUT OF THIS EULA OF THE LICENSED SOFTWARE FURNISHED HEREUNDER, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILTY, AGENCY, WARRANTY, TRESPASS, INDEMNITY OR ANY OTHER THEORY OF LIABILITY SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU FOR THE LICENSED SOFTWARE. THE LIMITATION OF LIABILITY SHALL NOT APPLY IF AND TO THE EXTENT LUMIERE’S LIABILITY IS MANDATORY UNDER THE APPLICABLE LAW (e.g., PRODUCT LIABILITY LAW OR INTENTIONAL MISCONDUCT).

 

  1. TECHNICAL SUPPORT AND AUDIT. Lumiere and its affiliates have no obligation to furnish You with any technical support services or to debug the LICENSED SOFTWARE unless separately agreed in writing between You and Lumiere. Lumiere and where applicable its licensors in the LICENSED SOFTWARE shall be free to use any feedback and/or technical data including audit data received from You resulting from your access to and use of the LICENSED SOFTWARE for any purpose for business purposes, including (without limitation) development, manufacture, marketing, product ordering, and maintenance or support of products and services. If and insofar as permissible under the relevant laws You permit Lumiere and its affiliates to audit the use of the LICENSED SOFTWARE and will give assistance and access to the necessary information.

 

  1. DATA PROTECTION: You acknowledge that Lumiere uses a software based solution for administration of data and license information. You agree that Lumiere stores and uses all data and information required for the business relationship between You and Lumiere or resulting from said relationships, especially but not limited to contractual documents and papers as well as data and information of and about You and Your auxiliary persons necessary for the performance of the contract. Furthermore, all this data and information may be disclosed to Lumiere and its Licensors as well as to their associated companies for corresponding processing, especially for providing services, fulfillment of legal requirements or for Lumiere internal audit and/or supervisory requirements; this always in compliance with respectively applicable data protection laws. You expressly agree that you have obtained all necessary consent for Lumiere to process all data and information that you provide under this EULA, and that your collection, processing, storage, and disclosure of any data or information under this EULA complies with all applicable laws and regulations.

 

  1. EXPORT CONTROL. The LICENSED SOFTWARE, including technical data / cryptographic software, may be subject to Swiss, German, European Union and U.S. export controls and may be subject to import or export controls in other countries. You agree to strictly comply with all applicable import and export regulations when distributing or using the LICENSED SOFTWARE. Specifically, You agree, to the extent required by U.S. Export Administration Regulations, that You shall not disclose or otherwise export or re-export the LICENSED SOFTWARE or any part thereof delivered under this EULA to any country (including a national or resident of such country) to which the U.S. has restricted or prohibited the export of goods or services. You represent and warrant that You are not (a) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist sponsoring” country, or (b) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

 

  1. FOR U.S. GOVERNMENT END USERS: The LICENSED SOFTWARE was developed at private expense and each component thereof is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and FAR 52.227-19 Commercial Computer Software License Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the LICENSED SOFTWARE with only those limited rights set forth therein. Publisher is Lumiere Technologies, LLC., 1805 SHEA CENTER DRIVE, STE 210 HIGHLANDS RANCH, Colorado 80129.

 

  1. APPLICABLE LAW AND FORUM. This EULA is governed by the laws of the State of Colorado without regard to any conflict of laws provisions therein. No choice of law rules of any jurisdiction will apply. Any disputes arising out of or relating to this EULA shall be brought in the State and federal courts in Denver, Colorado to the extent permitted by mandatory law.

 

  1. MISCELLANEOUS. Unless Lumiere has given separate individual contract conditions in writing, this EULA represents the entire agreement between You and Licensor relating to the LICENSED SOFTWARE and (a) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (b) prevails over any conflicting or additional terms of any acknowledgement or similar communication between the parties during the term of this License. If any provision of this EULA is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this EULA, and this EULA shall be enforced to the full extent allowable under applicable law. No modification to this EULA is binding, unless in writing and signed by a duly authorized representative of each party. You may not assign this EULA without the express written consent of Lumierem except to a successor in interest in the event of a merger, acquisition or re-organization. This EULA shall be binding on and shall inure to the benefit of the heirs, successors, and assigns of the parties hereto. Sections 3, 6, 10, 11, 13, 15, 18, and 19 shall survive termination of this EULA.The failure of either party to enforce any right resulting from the breach of any provision of this EULA by the other party will not be deemed a waiver of any right related to a subsequent breach of such provision or any other right hereunder.

 

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized representatives.