Effective Date: February 20, 2017
IMPORTANT: CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS EULA. THE TERMS OF THIS EULA GOVERN YOUR USE OF THE PANDUIT SOFTWARE. THIS SOFTWARE CANNOT BE DEPLOYED UNLESS YOU, THE “END USER,” OR YOUR AUTHORIZED REPRESENTATIVE, ACCEPTS THE TERMS AND CONDITIONS OF THIS END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) BY CLICKING THE “ACCEPT” ICON BELOW. BY CLICKING “I ACCEPT” OR PERMITTING A REPRESENTATIVE TO CLICK “I ACCEPT” ON YOUR BEHALF, YOU ACKNOWLEDGE THAT YOUR AUTHORIZED REPRESENTATIVE HAS READ AND UNDERSTANDS THIS AGREEMENT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT. IF, UPON REVIEW, YOU CHOOSE NOT TO ACCEPT THE TERMS AND CONDITIONS AS SET FORTH HEREIN, YOU WILL NOT BE ABLE TO USE THIS SOFTWARE.
THE PERSON CLICKING THE “I ACCEPT” ICON BELOW EXPRESSLY REPRESENTS AND WARRANTS THAT HE OR SHE HAS COMPLETE AND UNCONDITIONAL AUTHORITY TO ENTER INTO THIS END USER LICENSE AGREEMENT ON BEHALF OF THE END USER.
1. DEFINITONS. For purposes of this EULA, the following additional definitions apply:
a. An “Approved Source” means (a) Panduit; or (b) another third party who has been authorized by Panduit to distribute and resell Software.
b. “Panduit” means Panduit Corp. and any of its wholly owned subsidiaries and affiliates.
c. “Quotation” means the document that describes in detail the usage limits, the software license fees and the technical specification of the Software that Panduit or the Approved Source is offering Buyer that is in effect when the Approved Source accepts Buyer’s purchase order. It may be in the form of a quotation, a proposal or a statement of work.
2. GRANT OF LICENSE. Subject to the terms and conditions of this EULA, Panduit grants to You a perpetual, non-exclusive, license to install and use the object code version of the Software in a manner not inconsistent with the Documentation for your own internal business use, up to the usage limits for which You have paid the applicable license fees.
3. BUNDLED PACKAGE. If the Software is provided in a bundled package containing all components and features available from Panduit, then You shall only use those components and features for which you have paid the applicable license fees or which are made available at no charge, and any use of components or features absent a license key is prohibited. You must not disable or circumvent the license key or other end point restrictions contained in the Software. Certain components and features are designated as "Integration Tool" and/or “API” in the Documentation, and your use thereof is governed by the special terms and conditions set forth in the attachment to this EULA. You must abide by any additional restrictions of use specified for the particular version (or component thereof) of the Software set forth in the Documentation or in the applicable sales order or in the purchase specification provided at the time of download.
4. USE OF SOFTWARE.
a. Production Environment Use. You may use the Software in a Production Environment on a single production server (“Production Server”). Your use is restricted to one (1) Production Server, and You may not exceed the usage limits that you purchase pursuant to a Quotation issued to You by the Approved Source. You may not change or substitute the Production Server without Panduit’s prior written consent and your payment of an administrative transfer fee and additional licensee fees (if applicable) to an Approved Source. You may allow a third party service provider, such as a system integrator, to use the Software, in accordance with the terms of this EULA, solely for the purpose of providing value-added services for the Software exclusively for your internal business use.
b. Non-Production Environment Use. You may use the Software in a Non-Production Environment solely for internal development, training and testing of the Software and for back-up purposes. Your use is restricted to a single server and You may not exceed the usage limits that You purchase pursuant to a Quotation issued to You by the Approved Source. Your use of the Software in a Non- Production Environment may be concurrent with your use of the Software in a Production Environment. You are only entitled to one (1) Non-Production Environment under this Agreement on a single server. Any additional licenses for Non-Production Environments can be purchased by You and may be subject to the additional terms and conditions.
c. Disaster and Recovery Use. You may install one (1) copy of the Software on a single server in a Disaster Recovery Environment for use solely in disaster recovery purposes, and not for any other use, including without limitation, production, development, evaluation or testing purposes other than to ensure that the Software is capable of replacing the primary usage of the Software in case of a disaster.
d. Evaluation Use. If You have been provided the Software for evaluation purposes only, Panduit grants to You the right to use the Software and Documentation on the same terms and conditions as stated above but only for the length of time so authorized by Panduit for the evaluation. This license and your right to use the Software and Documentation thereafter is automatically terminated, unless You obtain a separate license from Panduit and You pay to an Approved Source the applicable license fee.
5. INTEGRATED PRODUCTS. The Software may contain software components from Panduit’s suppliers. This EULA does not grant to You any right to distribute, reproduce, share or transfer in any manner, software components from these suppliers.
6. COPYRIGHT AND COPIES. The Software is owned by Panduit or its suppliers and is protected by one or more of the following: copyright and patent laws and international treaty provisions. You are not an owner of the intellectual property rights therein. This is a license, not a transfer of title, to the Software and the Documentation. You may either: (a) make one (1) copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single hard disk, provided that You keep the original solely for backup or archival purposes. If You lose the Software, your Approved Source has no obligation to provide You with a replacement copy. You may not otherwise copy the Software except as expressly authorized by applicable law, and You may not copy the Documentation accompanying the Software. You may not: (a) make copies of the Software for purposes of distribution to the public by sale or other transfer of ownership, or by rental, lease or lending; (b) prepare derivative computer programs based upon the copyrighted Software; or (c) make a public performance of the Software or publicly display the Software. No additional or different rights are granted to You, either expressly or by implication. Panduit retains all rights not expressly granted to You under this EULA, and nothing in this EULA constitutes a waiver of Panduit's rights under copyright laws or any other international, federal or state law or treaty.
7. RESTRICTED RIGHTS. The Software was developed at private expense, is commercial, and is published and copyrighted. Panduit provides no rights in patents, computer software or technical data unless expressly agreed to in this EULA. If the Software is acquired by the U.S. government, or a U.S. government agency, or on behalf of the U.S. government or U.S. government agency, in no event will Panduit furnish to a buyer or the U.S. government any computer software with rights greater than “Restricted rights” as defined in FAR 52.227-14 (June 1987) or DFARS 252.227-7013 (November 1995) nor will Panduit provide technical data with rights greater than “Limited rights” as defined in FAR 52.227-14 (June 1987) or DFARS 252.227-7013 (November 1995) or subsequent citation.
8. OTHER RESTRICTIONS. You may not modify, port or translate the Software. You are expressly prohibited from sublicensing, selling, renting, leasing, sharing, outsourcing, using in a service bureau environment or otherwise commercially exploiting the Software and/or Documentation in any way. You may not reverse engineer, decompile or disassemble or otherwise attempt to derive the source code of the Software, except to the extent expressly authorized by applicable law. You agree not to electronically, optically or otherwise transmit, broadcast, transfer, or disseminate any portion of the Software and/or the Documentation over any public or private computer network (either local, wide area or otherwise), telephone network or other mode or channel of communication except: (a) where intrinsic to the normal operation of the Software, or (b) where provided in the Documentation, or (c) as otherwise expressly authorized by Panduit in writing. You are expressly prohibited from combining or distributing the Software with Open Source Software (as defined below) or with software developed using Open Source Software (e.g. tools) in a manner that subjects Panduit or any portion of the Software provided by Panduit hereunder to any license obligations of such Open Source Software. “Open Source Software” means any software licensed under terms requiring that other software combined or distributed with such software be disclosed or distributed in source code form. You may not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software and/or Documentation. You may not disclose or publish any results of benchmark tests run on the Software to a third party without Panduit’s prior written consent. You agree to use best efforts and take all reasonable steps to protect Software and Documentation from unauthorized use, illegal reproduction or illicit distribution.
9. LIMITED WARRANTY. Panduit warrants to You that for a period of ninety (90) days from the date of purchase, as evidenced by a copy of the receipt, the media on which Software is furnished (if any) will be free of defects in materials and workmanship under normal use. Except for the foregoing, Software is provided "AS IS". Your exclusive remedy and Panduit’s entire liability under this limited warranty will be to replace the Software media.
10. DISCLAIMER OF WARRANTY. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THERE IS NO WARRANTY, REPRESENTATION OR GUARANTEE THAT THE SOFTWARE WILL CONTINUOUSLY OPERATE OR BE ERROR-FREE OR THAT ANY PROBLEMS WILL BE CORRECTED. EXCEPT FOR PANDUIT’S LIMITED OBLIGATION TO PERFORM SUPPORT SERVICES (IF ANY), SHOULD THE SOFTWARE OR ANY OF ITS COMPONENTS PROVE DEFECTIVE OR INADEQUATE IN ANY RESPECT, YOU (AND NOT PANDUIT OR ITS AFFILIATES OR REPRESENTATIVES) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. FURTHER, PANDUIT DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS ABILITY TO DETER UNAUTHORIZED ACCESS, ITS COMPATIBILITY WITH HARDWARE OR OTHER SOFTWARE, ITS RELIABILITY, CURRENTNESS, OR OTHERWISE; AND YOU RELY ON THE SOFTWARE AND ITS PERFORMANCE SOLELY AT YOUR OWN RISK. ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS OF THE PRODUCT FOR A PARTICULAR USE OR PURPOSE, QUALITY, COURSE OF DEALINGS, USAGE OF TRADE, INACCURACY IN CONTENT CAUSED BY PANDUIT’S FAILURE TO PERFORM WITH REASONABLE CARE, QUIET ENJOYMENT OR NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED. YOU ACKNOWLEDGE THAT THIS SECTION IS IMPORTANT TO PANDUIT SUCH THAT PANDUIT WOULD NOT ENTER INTO THIS EULA WITHOUT SUCH DISCLAIMER AND THE PRICE OF THE SOFTWARE REFLECTS SUCH ALLOCATION OF RISK.
11. LIMITED LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL PANDUIT OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY COSTS OF SUBSTITUTE PRODUCTS, OR FOR ANY LOSS OF PROFITS OR REVENUE, LOSS OR INACCURACY OF DATA, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, DOWNTIME COSTS, OR FOR ANY OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE LICENSE OF, USE OF, OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF PANDUIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED IN THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL PANDUIT’S OR ITS SUPPLIER’S LIABILITY EXCEED THE PURCHASE PRICE OF THE SOFTWARE PAID BY YOU. THIS LIMITATION OF LIABILITY AND RISKS IS REFLECTED IN THE PRICE OF THE SOFTWARE.
12. AUDIT. Upon thirty (30) days written notice, Panduit or its authorized representative may audit Your use of the Software and Documentation and all facilities, computer equipment, books and financial records related to such use. You agree to cooperate with Panduit’s audit and provide reasonable assistance and access to information. You agree that Panduit shall not be responsible for any of Your costs incurred in cooperating with the audit. You agree to pay within 30 days of written notification any fees applicable to Your use of the Software in excess of Your Usage Limits under this End User License Agreement. If You do not pay, in addition to any rights and remedies available to Panduit by law, Your license will terminate and You will no longer be able to use the Software.
13. TRADE SECRETS/LIMITED ACCESS. The Software and Documentation embody proprietary technology and valuable trade secrets of Panduit and its suppliers, which are vital to the business of Panduit and its suppliers and whose value depends upon them not being generally known. You agree to hold the Software and Documentation in confidence and take all necessary steps to ensure that access to any portion of the Software or Documentation is not provided to any person or entity other than your bona fide employees or contractors who reasonably require such access to enable You to use the Software subject to this EULA.
14. THIRD PARTY ELEMENTS. You acknowledge that (i) the Software may contain other software or components that are either owned by a third party or in the public domain or may require your use of third party software in order for the Software to be installed and/or operated, and (ii) Panduit has no proprietary interest in such software or components, and as such, cannot grant You a license to use such software and/or component. A listing of such Third Party Software is made available to You in the Documentation, the “Read Me” files for each software or components or otherwise upon written request from Panduit. Regarding the third party elements that are incorporated into the Software, Panduit will provide, or otherwise make available, to You with any necessary sublicenses from such third party and You shall have the rights licensed to Panduit by the owners of the third party software and/or components. Panduit MAKES NO WARRANTIES OR REPRESENTATION AS TO SUCH THIRD PARTY SOFTWARE OR COMPONENTS (INCLUDING INFRINGEMENT) AND FURTHER DISCLAIMS ANY AND ALL LIABILITY FOR ANY LOSSES OR DAMAGES THAT MAY RESULT FROM YOUR USE THEREOF (INCLUDING CLAIMS OF INFRINGEMENT). You will indemnify and hold harmless, and upon request defend, Panduit, its officers, directors, agents, affiliates, distributors and employees from any and all losses, damages, costs, or other expenses incurred by such indemnified parties (including court costs and attorneys’ fees) incurred as a result of your failure to abide by this provision.
15. INDEMNIFICATION. You will indemnify and hold harmless, and upon request defend, Panduit, its authorized representatives, officers, directors, agents, affiliates, distributors and employees from any and all losses, damages, costs, or other expenses incurred by such indemnified parties (including court costs and attorneys’ fees) to the extent arising out of your use or misuse of the Software and the Documentation or your breach of this EULA.
16. COMPLIANCE: You will be responsible for compliance with all applicable laws, rules, regulations, orders and ordinances of the United States of America and in any other nation, province, or city with jurisdiction over You or your activities under this EULA. Without limitation to the foregoing, You agree to comply with all applicable export/import control laws and with any regulations issued from time to time by the United States Department of Commerce, or such other United States or international governmental entity that may have jurisdiction over the exporting, importing, and re-exporting of the Software and Documentation. You further agree that the Software and Documentation will not be acquired, shipped, transferred or exported, directly or indirectly, into any country or person prohibited by the United States Export Administration Act and the regulations thereunder, or will be used for any purpose prohibited thereby.
17. INTERNATIONAL USERS. This EULA has been written in the English language. You waive any rights that You may have under the laws of your country for this EULA to be written in the language of that country.
18. EQUITABLE REMEDIES. You hereby agree that, if the terms of this EULA are not specifically enforced, Panduit will be irreparably damaged, and therefore You agree that Panduit shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any breach(es) of this EULA, in addition to any other remedies available at law or in equity.
19. ASSIGNMENT. You may not assign this EULA in whole or in part without the prior written consent of Panduit. Any attempted assignment in violation thereof (whether voluntary or involuntary, by operation of law, merger, reorganization, change of control, sale of all or substantially all of the assets or otherwise) is null and void. Panduit may assign its rights under this EULA in whole or in part without your prior written consent or notice. This EULA shall inure to the benefit of Panduit, its successors and assigns.
20. TERM. The license granted under this EULA is perpetual until terminated. You may terminate the license at any time by returning the Software to Panduit, together with all copies, modifications and merged portions in any form. This EULA, in its entirety, will terminate automatically upon your failure to comply with any term or condition contained herein. In the event of such termination, You agree to destroy all copies of the Software and certify to Panduit that the destruction has been complete. Following the termination of the EULA, Panduit shall have no further obligations hereunder, and your license to the Software shall immediately terminate.
21. ARBITRATION. All disputes arising out of or in connection with this EULA shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The arbitration shall be conducted before a panel of three arbitrators. Each party shall select one arbitrator within 30 days of the filing of the Demand for Arbitration. The parties shall then attempt to agree on the third arbitrator (the “Chairman”) within 30 days of the confirmation of the second arbitrator. If the parties fail to agree on the Chairman within such period, then such Chairman shall be appointed by the ICC. The arbitration shall take place in Chicago, Illinois, USA and be governed by the laws of the State of Illinois without regard to principles of conflicts of law. The arbitration shall be conducted exclusively in the English language. Any award rendered by the arbitrators shall be final and binding on the parties, and each party hereto waives to the fullest extent permitted by law any right it may otherwise have under the laws of any jurisdiction to any form of appeal of, or collateral attack against, such award. The arbitrators shall have the power to grant any remedy or relief that they deem just and equitable, including but not limited to injunctive relief, whether interim and/or final, and any provisional measures ordered by the arbitrators may be enforced by any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Agreement shall prevent either party from seeking any provisional/preliminary relief (including, but not limited to, injunctions, attachments or other such orders in aid of arbitration) from any court of competent jurisdiction, and any such application to a court for provisional/preliminary relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.
22. MISCELLANEOUS. This is the entire agreement between You and Panduit, and supersedes any prior agreement, whether written or oral, relating to the subject matter of this EULA. The parties disclaim the application of the United Nations Convention on the International Sale of Goods, the Uniform Commercial Code and the Uniform Computer Information Transactions Act. This EULA is governed by the laws of the State of Illinois without regard to choice of law principles, and the applicable federal laws and international treaties of the United States of America. This EULA, which is in English, shall be interpreted in accordance with the commonly understood meaning of the words and phrases in the United States of America. This EULA may not be modified except pursuant to a writing signed by an authorized representative of Panduit. The parties agree that the terms and conditions of this EULA shall prevail notwithstanding contrary or additional terms in any purchase order, sales acknowledgment, confirmation or any other document issued by either party. If any provision of this EULA is held to be illegal, invalid, or unenforceable then that provision shall be fully severable from this EULA and shall not affect the legality, validity or enforceability of the remaining provisions of this EULA. Failure of Panduit to enforce any of the terms or conditions of this EULA, unless waived in writing, shall not constitute a waiver of Panduit’s right to enforce each and every term and condition of this EULA.
SPECIAL TERMS AND CONDITIONS FOR INTEGRATION TOOL OR API
The Software may contain certain components and features identified as "Integration Tool" or “API” in the Documentation. For purposes of this EULA, "Integration Tool" collectively means a software development environment and components of the Software designed for use with the Software platform, as made available by Panduit for developer reference use only, including, but not limited to, the APIs, reference applications, sample code, test scripts, data files, and any documentation relating to or included in the software development environment, including without limitation, flowcharts, training manuals, and operating manuals for the use of the Software on the Software platform, and any derivative works thereof or modifications thereto. The following special terms and conditions ("Special Terms") shall govern your use of the Integration Tool. The general terms and conditions set forth in this EULA also apply; however, if there is an inconsistency or conflict between the terms and conditions set forth in these Special Terms and this EULA, then these Special Terms shall control.
1. INTEGRATION TOOL TERM: These Special Terms are effective beginning as of either the date that You download the Integration Tool portion of the Software and/or Documentation or the date of delivery thereof, as applicable, and continue in effect unless earlier terminated in accordance with Section 6 of these Special Terms (hereinafter, the “Integration Tool Term”).
2. LICENSE.
a. Use: Subject to these Special Terms, Panduit grants to You a personal, non-transferable, non-exclusive license to install and use the Integration Tool:
i. only at a single physical location;
ii. only during the Integration Tool Term;
iii. on computers or devices owned or leased by You; and
iv. only for the purposes of developing, testing, and debugging software applications, or portions thereof, intended to run on the Software platform or interface with the Software. You shall make no other use of the Integration Tool.
b. Reserved Rights: All rights with respect to the Integration Tool not expressly granted to You remain with Panduit.
3. CONFIDENTIALITY; RESTRICTIONS ON USE
a. Audit. You acknowledge that all right and title to the Integration Tool and all Panduit technology contained or evidenced therein are owned by Panduit and that Panduit retains all right, title, and interest in the Integration Tool and all Panduit technology. You acknowledge that You have no proprietary interest in the Integration Tool other than the license to use the Integration Tool strictly in accordance with these Special Terms. You agree that You will make no statements, claims, or representations nor take any action inconsistent with Panduit’s ownership rights.
b. Ownership. You agree that, upon reasonable notice, Panduit may request that You submit written reports to Panduit sufficient to enable it to audit, or allow an independent auditor to audit, your use of the Integration Tool solely for the purpose of determining your compliance with the terms and conditions of these Special Terms.
c. Restrictions on Use. You agree that:
i. You will hold the Integration Tool in strict confidence and will not disclose, export, display, loan, publish, transfer possession (whether by sale, exchange, gift, operation of law, or otherwise), sublicense, or otherwise make the Integration Tool (or any part thereof) available to any third party (except to allow a third party service provider, such as a system integrator, to use the Integration Tools in accordance with these Special Terms, solely for the purpose of providing services for the Software specifically to You) and will take all reasonable steps and precautions to maintain the confidentiality of the Integration Tool. In addition, You will not electronically or optically release, transmit, broadcast, transfer, or disseminate any portion of the Integration Tool on any public or private computer network (either local, wide area, or otherwise), telephone network, or other mode or channel of communication.
ii. You will not alter or remove or permit to be altered or removed any proprietary markings included on the Integration Tool, including, without limitation, any copyright, trade secret, or patent notices, or any other legal notice indicating the confidential and/or proprietary nature of the Integration Tool.
iii. You will not copy or duplicate by any means the Integration Tool (or any part thereof) for any purpose not expressly permitted under these Special Terms.
iv. You will not modify, disassemble, decompile, reverse engineer, encumber, or transfer the Integration Tool except to the extent, if any, expressly permitted by law.
v. In no event will Panduit be obligated to disclose source code of the Integration Tool or the Software to You.
vi. You will not use the Integration Tool with any Open Source Software or software developed using Open Source software in any manner that subjects Panduit or its licensors (or any portion of the Integration Tool provided by Panduit or its licensors or any derivative work thereof) to any license obligations applicable to Open Source Software (which includes any software licensed under terms requiring that other software combined or distributed with that software be disclosed or distributed in source code form or licensed on terms inconsistent with the terms of these Special Terms).
vii. You will use the Integration Tool solely for your internal business operations and not for commercial purposes, or in any manner intended to generate revenue. You may load the Integration Tool onto any computers or devices owned by You to create interfaces for integrating existing or future enterprise applications created by You with the Software for use in conjunction with the Software platform, but You shall not ship, sublicense, sell, resell, electronically transfer, or otherwise distribute the Integration Tool, either as a stand-alone product or bundled with other products, to third parties, or to use it for any services for third parties.
viii. You will not publish any results of any benchmark tests run on the Integration Tool or any component thereof.
ix. You will not disclose any of the terms, conditions, and/or fee amounts of these Special Terms to any third party, unless required to do so by order of any court or governmental authority of competent jurisdiction.
x. You shall maintain the Integration Tool under secure conditions using strict security measures and in any event not less than the same security procedures used by You to protect your own confidential information. You shall not disclose (or permit the disclosure of) the Integration Tool to anyone other than your employees or third party service providers who have an actual need to have access to the Integration Tool. Further, You agree to inform each of your employees or third party service providers who are given access to the Integration Tool that they are (a) legally bound by these Special Terms as individuals and (b) have a legal obligation not to disclose the Integration Tool to anyone or use the Integration Tool for any purpose other than the purpose set forth in these Special Terms. You will take such steps as are reasonably necessary to ensure compliance with this obligation. You shall notify Panduit immediately upon discovery of any unauthorized use or disclosure of the Integration Tool and cooperate with Panduit in every reasonable way to help Panduit regain possession of the Integration Tool or prevent its further unauthorized use.
xi. You acknowledge and agree: (a) the Integration Tool is confidential information and valuable property and trade secret of Panduit; (b) any violation by You of the confidentiality obligations or restrictions on use set forth in these Special Terms shall constitute a material breach of these Special Terms; (c) any violation by You of the confidentiality obligations or restrictions on use set forth in these Special Terms could cause Panduit irreparable injury for which it would have no adequate remedy at law; and (d) in addition to any other remedies that Panduit may have, Panduit will be entitled to preliminary and other injunctive relief against any such violation without posting bond or proving damages.
xii. The provisions of this Section 3 will survive the expiration or termination of these Special Terms.
4. NO SUPPORT. Panduit is under no obligation to provide any support under these Special Terms for the Integration Tool, including any bug fixes, patches, corrections, workarounds, enhancements, new releases, or future versions of the Integration Tool (or a component thereof), to You or any other party.
5. WARRANTIES AND LIMITATIONS OF LIABILITY
a. THE INTEGRATION TOOL IS PROVIDED "AS IS" AND "WITH ALL FAULTS" WITHOUT WARRANTY OF ANY KIND AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH END USER. PANDUIT DOES NOT WARRANT THAT THE OPERATION OF THE INTEGRATION TOOL WILL BE UNINTERRUPTED OR ERROR-FREE. PANDUIT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SUITABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT, ORIGINALITY, OR FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES.
b. IN NO EVENT SHALL PANDUIT BE LIABLE FOR ANY COSTS OF SUBSTITUTE PRODUCTS, OR FOR ANY LOSS OF PROFITS OR REVENUE, LOSS OR INACCURACY OF DATA, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, DOWNTIME COSTS, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES WHATSOEVER EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. PANDUIT’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE SPECIAL TERMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED TEN U.S. DOLLARS.
d. YOU ACKNOWLEDGE THE ALLOCATION OF RISK SET FORTH IN THESE SPECIAL TERMS AND THAT PANDUIT WOULD NOT ENTER INTO THESE SPECIAL TERMS WITHOUT THESE LIMITATIONS OF LIABILITY.
6. TERMINATION.
a. Either party may terminate these Special Terms at any time and for any reason upon five (5) days written notice.
b. These Special Terms may be immediately terminated by Panduit upon the occurrence of any violation by You of the confidentiality obligations or restrictions on use set forth in these Special Terms. In the event of any such violation, Panduit shall have the option to terminate these Special Terms, this EULA, or any other written agreement between You and Panduit.
c. If either party goes into receivership, bankruptcy, or insolvency, or makes an assignment for the benefit of creditors, or ceases business operations, these Special Terms shall be immediately terminable by the other party by written notice, but without prejudice to any rights of the terminating party hereunder. Such termination will be effective as of one (1) day prior to the event.
d. You agree that upon expiration of the Integration Tool Term or the termination of these Special Terms by either party, You shall not continue to use the Integration Tool, shall de-install and certify de-installation of the Integration Tool from all CPUs onto which the Integration Tool was installed by You, and shall return to Panduit or destroy and certify destruction of the original media and all copies of the Integration Tool within thirty (30) days after the date of such termination. Any provision of these Special Terms, which by its terms is intended to so survive, shall survive any expiration or termination of these Special Terms for any reason.
7. INDEMNIFICATION
a. Panduit will have no obligation to indemnify You or defend You with respect to any infringement claim based upon: (i) use of the Integration Tool; (ii) use of the Integration Tool in combination with other products, equipment, software development kits, or data; (iii) use of any release of the Integration Tool; or (iv) modification of the Integration Tool.
b. You agree to indemnify Panduit and its affiliates and licensors from, and against, all liabilities, expenses (including court costs and attorneys’ fees), losses, and other damages that are caused by, arise out of, or relate to, your use of the Integration Tool, including, without limitation, any derivative works created by You using the Integration Tool. This includes, but is not limited to, any claim of libel, defamation, obscenity, negligence, violation of rights of privacy or publicity, loss of service, property damage, and infringement of intellectual property or other rights.
