Tridium Marketplace Terms and Conditions
THIS TRIDIUM MARKETPLACE IS UNDER DEVELOPMENT AND BETA TESTING. IT HAS NOT YET BEEN RELEASED FOR COMMERCIAL USE, AND MAY CONTAIN ERRORS, INACCURACIES OR OTHER PROBLEMS. YOUR USE OF THE MARKETPLACE BETA-VERSION IS ENTIRELY AT YOUR OWN RISK AND IS AVAILABLE “AS-IS, WHERE-IS, WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TRIDIUM AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER IN CONNECTION WITH YOUR ACCESS OR USE OF THE MARKETPLACE BETA-VERSION OR WITH RESPECT TO THESE TERMS AND CONDITIONS, AND BY ACCESSING AND USING THE MARKETPLACE, YOU FULLY RELEASE TRIDIUM, ITS AFFILIATES, AND EACH OF ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES OF ALL CLAIMS RELATED TO THE MARKETPLACE BETA VERSION. TRIDIUM IS UNDER NO OBLIGATION TO RELEASE A FINAL AND FINISHED FORM OF THE MARKETPLACE.
THESE TERMS AND CONDITIONS MAY BE UPDATED BY TRIDIUM AT ANY TIME WITHOUT NOTICE TO YOU. YOUR CONTINUED USE OF AND ACCESS TO THE MARKETPLACE MEANS YOU CONSENT TO THE SELLER TERMS AS THEY ARE MODIFIED FROM TIME TO TIME HEREAFTER.
As a user of this portal and as a customer ("You" or "Your") of Tridium, Inc., a wholly-owned subsidiary of Honeywell International Inc. (“Tridium,” “we,” and “us”), You may purchase certain third party products and services through Tridium's Marketplace electronic portal and websites for software and/ or hardware distribution (the “Marketplace"). The Marketplace permits Tridium and/or sellers (each a “Seller”) to make software and/ or hardware (the "Product(s)") available to You.
The following terms and conditions form a legally binding agreement between You and Tridium and govern Your use of the Marketplace, together with the Products that are available to You through or from the Marketplace, including, without limitation, and to the extent applicable, the ability to access, browse, review, purchase, download, and use a Product.
THESE TERMS ARE IN ADDITION TO ANY AGREEMENT BETWEEN YOU AND TRIDIUM OR YOU AND ANY SELLER UNDER WHICH YOU HAVE PURCHASED A SOFTWARE OR HARDWARE PRODUCT. IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND ANY PURCHASE AGREEMENT, THE ONE PROVIDING GREATER RIGHTS TO TRIDIUM AND ITS AFFILIATES AND IMPOSING GREATER OBLIGATIONS ON YOU AND YOUR AFFILIATES SHALL CONTROL.
The Marketplace is only available to individuals over the age of 18, who are located in the United States, European Union, and United Kingdom. The Marketplace is not open to You if You have been previously suspended or removed from the Marketplace by Tridium.
When using the Marketplace, You will be subject to any additional posted policies, guidelines, or rules applicable to specific services and features which may be posted, in Tridium’s discretion, from time to time.
Tridium reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Marketplace. Please check these Terms and any policies periodically for changes. In the event that such modifications materially alter Your rights or obligations, Tridium will use commercially reasonable efforts to notify You directly of the change, such as through the use of a pop-up window in the Marketplace, or by sending an email to the address You provide upon registration. Your continued use of the Marketplace after the changes become effective constitutes Your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or fees will automatically be effective upon the earlier of (a) Your use of the Marketplace with actual notice of the new terms, or (b) thirty (30) days after they are initially posted on the Marketplace.
3.1. Permissions. Subject to these Terms, Tridium grants You permission to use the Marketplace solely for Your internal business purposes to the extent permitted by these Terms to (i) search, browse and purchase Products as available through the Marketplace; and (ii) to log into, use and manage the Products You purchase through the Marketplace. Unregistered use, reproduction and distribution of the Marketplace is not permitted and is in violation of U.S. and international copyright laws and is subject to civil and criminal penalties. All rights of any kind in the Marketplace and all other rights of Tridium and its affiliates which are not expressly granted in these Terms are entirely and exclusively reserved to and by Tridium.
3.2. Credentials; Password. You must create a username and password to access the Marketplace. You agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by the registration form and (b) maintain and promptly update such information. If You are provided with a temporary username and password, You must modify the temporary credentials and create Your own username and password. You are responsible for maintaining the confidentiality of Your password and account and You are fully responsible for all activities that occur under Your password or account. You agree to (x) immediately change Your password in the event of any breach of security, and (y) notify Tridium if You have experienced a breach of security. You are fully responsible for all activities that occur under Your account, and Tridium is not responsible for any losses arising from the unauthorized use of Your account.
3.3. Limits and Restrictions. Without limiting any other provision of these Terms, the following rules apply to Your use of the Marketplace. You will not:
3.3.1. rent, lease, copy, modify, or translate the Marketplace, or post, publish, or create derivative works based on the Marketplace;
3.3.2. remove, circumvent, disable, damage, adversely affect, or otherwise interfere with: (i) security-related features of the Marketplace, (ii) features that prevent or restrict use or copying of any content or Product accessible through the Marketplace, or (iii) features that enforce limitations on the use of the Marketplace or Products;
3.3.3. decompile or reverse engineer the Marketplace or any Products purchased on or through the Marketplace, or take any other action to discover the source code or underlying ideas or algorithm or any components thereof;
3.3.4. "harvest" (or collect) information from the Marketplace using an automated software tool, system, or process, including, for example, a bot, spider, crawler, or manually on a mass basis (unless Tridium has given You separate written permission to do so);
3.3.5. use automated means to access the Marketplace, or gain unauthorized access to the Marketplace or to any account or computer system connected to the Marketplace;
3.3.6. obtain, or attempt to obtain, access to areas of the Marketplace that are not intended for access by You; or
3.3.7. alter or remove any of Tridium’s copyright or proprietary rights notices or legends appearing on or in the Marketplace or the Marketplace.
3.4. THIRD PARTY SERVICES. The Marketplace may contain or be derived from materials of third party licensors. Such third party materials may be subject to restrictions and terms in addition to those listed in these Terms. You agree to comply with all such restrictions and terms and that any third party supplier shall have the right to enforce these Terms with respect to such third party’s software.
The Marketplace may contain Open Source Software (OSS) that is provided to You under the terms of the open source license agreement or copyright notice accompanying such OSS, each of which You agree to comply with. As used herein, the term “Open Source Software” means any software, program, module, code, library, database, driver or similar component (or portion thereof) that is royalty free, proprietary software, the use of which requires any contractual obligations by the user to a third party or any license that has been approved by the Open Source Initiative, Free Software Foundation or similar group.
Tridium reserves the right to disable any unauthorized links. Tridium has no responsibility or liability for any material on other web sites that may contain links to the Marketplace. The Marketplace may display, include or make available, content, data, information, applications, links or materials from third parties or provide links to certain third party web sites not under the control of Tridium. You acknowledge and agree that Tridium is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such third party materials or web sites. TRIDIUM DOES NOT WARRANT OR ENDORSE AND DO NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY THIRD PARTY SERVICES, THIRD PARTY MATERIALS OR WEB SITES, OR FOR ANY OTHER MATERIALS, PRODUCTS, OR SERVICES OF THIRD PARTIES. YOU AGREE TO USE SUCH SERVICES AT YOUR SOLE RISK AND TRIDIUM SHALL NOT HAVE ANY LIABILITY TO YOU FOR CONTENT THAT MAY BE FOUND TO BE OFFENSIVE, INDECENT, OR OBJECTIONABLE.
Although Tridium may perform limited checks of the identities or backgrounds of particular Sellers, Tridium does not endorse (or make any representations concerning) any Seller, the Products it provides, or information it provides on the Marketplace. Tridium shall have no obligation to ensure that the Products operate in conjunction with Your equipment, software or other products or systems. You shall be responsible for all costs it incurs in connection with any modifications You elect to make to its own equipment, software or other products or systems.
4.2. Fees. Any purchases You make on the Marketplace may have fees associated with them. When You make any purchase, You have an opportunity to review and accept the fees that You will be charged. The Seller [or Tridium] may choose to temporarily change the fees for any Product for promotional or other reasons, and such changes are immediately effective when the revised fees are posted on the Marketplace. You are not entitled to the revised fee for any Product you have already purchased or for any previous but expired revised pricing. Unless otherwise stated, all fees are quoted in U.S. Dollars.
4.3. Transaction Processing. All Marketplace transactions are facilitated through a third-party payment processor, pursuant to an agreement between that Seller and that third party payment service provider, not by Tridium.
4.4. Payments. You agree to pay for all Products that You purchase from Sellers through the payment services functionality integrated into the Marketplace. Such payment functionality is the exclusive method of payment for Products through the Marketplace.
4.5. Taxes. The fees do not include any excise, sales, use or other taxes, and therefore are subject to increase in the amount of any such taxes (excluding any tax on Tridium’s net income) that Tridium may be required to collect or pay upon the sale or delivery of the Products offered on the Marketplace. You are responsible for paying any governmental taxes imposed on Your purchases through the Marketplace, including, but not limited to, sales, use or value-added taxes. To the extent Tridium is obligated to collect such taxes, the applicable tax will be added to the amounts to be charged for your purchases, via either credit card or via invoice (as applicable).
4.6. Refund Policy. NO REFUNDS OR EXCHANGES ARE AVAILABLE TO YOU THROUGH THE MARKETPLACE. SELLERS MAY CHOOSE TO OFFER REFUNDS OR EXCHANGES, AT THE SELLER’S SOLE RISK. ANY SUCH REFUND POLICY WILL BE SET FORTH IN YOUR PURCHASE AGREEMENT WITH SELLER, WITHOUT EFFECT ON TRIDIUM. YOU AGREE THAT YOU WILL HAVE NO RECOURSE WHATSOEVER TO TRIDIUM OR THE MARKETPLACE FOR REFUNDS OR EXCHANGES.
Availability of Content; Purchases. Tridium may make changes to or discontinue any of the Products available within the Marketplace at any time, and without notice. If You purchase a Product that is no longer accessible through the Marketplace, you must contact the Seller directly to gain continued access during the remaining term of the applicable Seller Terms.
4.7. Disputed Charges. If You dispute any charges for Products you purchase on the Marketplace, your access to such Products may be suspended until such dispute is resolved. Tridium shall have no liability to You for any account suspension. Tridium will rely on the information provided to it by the Seller and third party payment service provider when assessing the status of Your access to the Products.
5. TERM; VIOLATIONS; TERMINATION
5.1. Term. These Terms are effective on the day You first use the Marketplace and will continue for so long as You continue to use the Marketplace or, if earlier, until Tridium terminates these Terms. Your rights under these Terms will terminate automatically if You fail to comply with any of its terms.
5.2. Termination. Tridium has the right to deny access to, and to suspend or terminate Your access to, the Marketplace, or to any features or portions of the Marketplace, at any time and for any reason, including for any violation by You of these Terms. You agree that Tridium, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with Tridium or Your use of the Marketplace and remove and discard all or any part of Your account, user profile, and other information, at any time. You agree that any termination of Your access to the Marketplace or any account You may have or portion thereof may be effected without prior notice. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Tridium may have at law or in equity.
Upon termination of these Terms, , You must stop all use of the Marketplace immediately. Tridium reserves the right at any time and from time to time to charge for use of the Marketplace, and to modify or discontinue, temporarily or permanently, the Marketplace (or any part thereof) with or without notice. You agree that Tridium will not be liable to You or to any third party for any modification, suspension or discontinuance of the Marketplace.
5.3. Your Actions. Your only remedy with respect to any dissatisfaction with (i) the Marketplace, (ii) any of these Terms, (iii) any policy or practice of Tridium in operating the Marketplace, or (iv) any content or information transmitted through the Marketplace, is to terminate Your use of the Marketplace and Your account. If you are dissatisfied with any Product that you access or have purchased through the Marketplace, You must contact the Seller and not Tridium. You acknowledge and agree that you will have no recourse to Tridium for any problems with your purchase. Your obligation to pay for all Products previously purchased shall survive any termination of Your account and Your access to the Marketplace.
6. INTELLECTUAL PROPERTY
6.1. Ownership, Proprietary Rights. The Marketplace is owned and operated by Tridium. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Marketplace provided by Tridium and/or Sellers (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Marketplace, except the Products, including images thereof, are the property of Tridium or its subsidiaries or affiliated companies. All trademarks, service marks, and trade names are proprietary to Tridium or its affiliates or in the case of Sellers’ marks, are the property of Sellers and are presented on the Marketplace under license. You may not sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Tridium reserve all rights not expressly granted in these Terms.
6.2. Trademarks, Disclaimer. Tridium, the Tridium logo, Sellers names, the Sellers’ logos, and all product names appearing on Marketplace are among the trademarks and/or service marks owned by Tridium, or its subsidiaries or affiliates, or by the relevant Seller, and no rights in any trademark or service mark or other license is granted to You in connection with the Materials contained on the Marketplace.
Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license to any patent, trademark or other intellectual property right of Tridium or any third party. Tridium makes no representations or warranties that any use of the information contained on the Marketplace will not infringe any such patent, trademark or other intellectual property right of Tridium Inc. or any third party.
6.3. Digital Millennium Copyright Act. It is Tridium’s policy to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof, and You believe that any content hosted on the Marketplace infringes Your copyrights, You may submit a notification to Tridium's registered agent with the U.S. Copyright Office, or as set forth below in Section 12A.
You agree to indemnify, defend, and hold Tridium, its affiliated companies, contractors, employees, agents, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the Marketplace or any Product, Your violation of these Terms, or any breach of Your representations, warranties, and covenants. Tridium reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Tridium, and You agree to cooperate with Tridium 's defense of these claims. Tridium will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it. You agree not to file a lawsuit or initiate any claim, in respect to any losses, damages, liabilities, including legal fees and expenses caused by any Product, against Tridium and its affiliated companies, You understand and agree that Your sole recourse shall be to Seller and Tridium shall have no liability whatsoever.
8. WARRANTY DISCLAIMER
YOU EXPRESSLY AGREE THAT THE USE OF THE MARKETPLACE IS AT YOUR SOLE RISK. THE MARKETPLACE AND ANY DATA, INFORMATION, PRODUCTS, REFERENCE SITES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MARKETPLACE ARE PROVIDED BY TRIDIUM AND/OR SELLERS ON AN "AS IS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE OR NON-PERFORMANCE OF THE MARKETPLACE REMAINS WITH YOU. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TRIDIUM, AND ITS AFFILIATES, PARTNERS, AND LICENSOR DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. TRIDIUM, AND ITS AFFILIATES AND PARTNERS DO NOT WARRANT THAT THE DATA, FEATURES, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE MARKETPLACE OR ANY REFERENCE MATERIALS WILL BE UNINTERRUPTED, TIMELY, RELIABLE, LEGAL, COMPLETE, OPERABLE, AVAILABLE, ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING, IF ENCOUNTERED, WILL BE CORRECTED. TRIDIUM, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS ABOUT SELLERS OR PRODUCTS. ANY WARRANTY MADE REGARDING ANY PRODUCT IS MADE DIRECTLY BY THE SELLER. UNDER NO CIRCUMSTANCES WILL TRIDIUM OR ITS AFFILIATES BE LIABLE FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY PRODUCT, ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE OR CAUSES BEYOND TRIDIUM’S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, SHORTAGES OF LABOR OR MATERIALS, OR NON-PERFORMANCE OF THIRD PARTIES. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE EXCLUSIONS OF WARRANTIES CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
9. LIMITATION OF LIABILITY AND DAMAGES
9.1. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL TRIDIUM OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS, THE MARKETPLACE OR ANY PRODUCT, EVEN IF TRIDIUM OR A TRIDIUM AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, TRIDIUM'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
9.2. LIMITATION OF DAMAGES. IN NO EVENT WILL TRIDIUM OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, PARTNERS, OR SUPPLIERS BE LIABLE FOR ANY DAMAGES SUFFERED BY THE CUSTOMER OR ITS END USERS. IN NO EVENT WILL TRIDIUM'S AND ITS AFFILIATES', CONTRACTORS', EMPLOYEES', AGENTS', PARTNERS', OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE MARKETPLACE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO TRIDIUM (FOR THE RIGHT TO ACCESS AND USE PRODUCTS) DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED US DOLLARS ($100 USD), WHICHEVER IS GREATER.
10. Reviews of Products.
The Marketplace allows users to post reviews of Products and to post comments on Your or other users’ reviews.
10.1. Names Displayed. Reviews and comments are posted under the name and profile of the user submitting the content.
10.2. Rules for Reviews. All reviews and comments must comply with the terms below. To make your reviews and comments useful to others:
10.2.1. Reviews must be made in good faith after reasonable evaluation of the relevant Product;
10.2.2. You may post only one review per Product, unless the latter review reflects a good-faith rating change based on further evaluation;
10.2.3. You (including anyone acting on your behalf) may not review or comment on Your own Product, a Product owned by a company you work for, or those of competitors. As an exception, You may provide informational responses to support requests or other inquiries directed to You within the reviews or comments section of your Product listing;
10.2.4. A review must evaluate the Product itself and not be an evaluation of the underlying product with which the Product integrates or functions; and
10.2.5. Reviews or comments unrelated to the relevant Product are prohibited.
10.3. Tridium Rights. Tridium reserves the right, in its sole discretion and for any reason at any time, to remove any review or comment on the Marketplace. Tridium does not claim ownership of the content of reviews or comments You post on the Marketplace. However, You hereby grant Tridium a nonexclusive, worldwide, irrevocable, perpetual, transferable, sublicenseable, fully paid-up, royalty-free license to use, distribute, reproduce, modify, excerpt, attribute, adapt, publicly perform and publicly display that content (in whole or in part) and to incorporate it into other works in any format or medium now known or later developed, and to permit others to do so.
10.4. Feedback. You may provide reasonable feedback to Tridium concerning the functionality of the Marketplace. All feedback will be the sole and exclusive property of Tridium. You hereby assign and transfer to Tridium any and all rights, title, and interest in and too all feedback, including any intellectual property rights therein. You shall not acquire any additional rights or licenses if Tridium incorporates feedback into the Marketplace.
Except as otherwise provided in this Agreement, any notices or other
communications contemplated or required under this Agreement, in order to be
valid, shall be in writing and shall be given via personal delivery, overnight
courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to You
shall be sent to the Your Company's address set forth in Your Payment Account;
notices to Tridium shall be sent to
3951 Westerre Pkwy
Richmond, VA 23233
Attn Legal Department
All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
11.2. Export. You must comply with all laws and regulations applicable to Your use of the Marketplace, including, but not limited to, data privacy or localization, anti-bribery, and export control laws (i.e., export to embargoed, prohibited, or restricted countries or access by prohibited, denied, or designated persons), and Your right to use the Marketplace is subject to such compliance. You may not use the Marketplace for any illegal or unauthorized purpose, and no User may upload or produce any information or content that is in breach of or otherwise infringes any confidentiality obligation or is (or has the potential to be) defamatory, fraudulent, misleading, obscene, pornographic, dangerous, or otherwise unlawful or tortious. For purposes of FARs, DFARs, and access by governmental authorities in the United States, as applicable, the Services and User Data are “commercial computer software”, “commercial computer software documentation” and “restricted data” provided to User under “Limited Rights” and “Restricted Rights” and only as commercial end items.Governing Law. These Terms and any dispute, controversy, difference, or claim arising out of or relating to it (“Dispute”) will be governed by the substantive laws of the jurisdiction listed below, without regard to conflicts of laws principles, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto): (a) if User is formed or principally located or domiciled in any country in United States the laws of the State of New York, USA will govern these Terms and any Dispute, and User agrees that all Disputes will be finally resolved by a panel of three arbitrators in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association, with New York, New York as the place of arbitration; or (b) if User is formed or principally located or domiciled in any other country, the laws of England and Wales will govern these Terms and any Dispute, and User agrees that all Disputes will be finally resolved by a panel of three arbitrators in accordance with the Rules for Arbitration of the International Chamber of Commerce, with London, England as the place of arbitration. The language of all arbitrations will be English. Judgment upon any award rendered by the arbitrators identified may be entered in any court having jurisdiction. Until the award is entered, either party may apply to the arbitrators for injunctive relief and/or seek from any court having jurisdiction, interim or provisional relief if necessary, to protect the party’s rights or property. The parties agree that any claims will be adjudicated on an individual basis, and each expressly waives the right to participate in any action, lawsuit, or proceeding as a class or collective action, joint action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.
11.3. Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of these Terms, breach of any provision of these Terms and Conditions by You will cause Tridium irreparable damage for which recovery of money damages alone would be inadequate, and that Tridium will therefore be entitled to obtain timely injunctive relief, without posting of any bond or security, to protect Tridium’s rights under these Terms and Conditions in addition to any and all other remedies available at law or in equity.
11.4. Severability. If any provision of these Terms or any policies is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
11.5. Waiver. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.6. Assignment. You shall not, without the prior written consent of Tridium, assign, transfer, or subcontract any of its rights or obligations under these Terms and Conditions. Tridium may at any time assign, transfer, or subcontract any of its rights or obligations under these Terms and Conditions.
Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 3-9.
11.7. Third Party Beneficiaries. The software and website platform for the Marketplace may be powered by a third-party. Such third-party is beneficiary of the terms in this Agreement and is entitled to enforce them as if it were a party to this Agreement.
11.8. Entire Agreement. This is the entire agreement between You and Tridium relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or policies made by Tridium. These Terms form the entire agreement between You and Tridium with respect to the subject matter hereof and thereof and supersede in their entirety any and all oral or written agreements or understandings previously existing between You and Tridium with respect to such subject matter.
11.9. Independent Contractor; No Agency. The relationship between You and Tridium is one of independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended, nor shall anything herein be interpreted or construed to or create, either expressly or by implication, any such relationship.