END USER LICENSE AGREEMENT

FOR CARRIER RESIDENTIAL HVAC PRODUCT FIRMWARE & SOFTWARE UPDATES

BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”).  IF YOU DO NOT AGREE, DO NOT INSTALL, COPY OR USE THE SOFTWARE; YOU MUST DELETE OR DESTROY ANY COPY IN YOUR POSSESSION OR CONTROL. This Agreement is between you (“you” or “your”) and Carrier Corporation (“Licensor”) for the product firmware and software intended to be used with Carrier Residential HVAC products that accompany this Agreement, including all associated media, printed or electronic documentation, and internet-based services (collectively, the “Software”). 

IF YOU ARE A CONTRACTOR ACCEPTING THIS AGREEMENT ON BEHALF OF A CONSUMER, YOU REPRESENT YOU HAVE THE CONSUMER’S CONSENT TO ACCEPT IT ON THEIR BEHALF.

1.  License Grants.  During the term of this Agreement and conditioned upon your full compliance with all of the Agreement’s terms and conditions, Licensor grants to you the following licenses:

A.    Software. Licensor grants to you a personal, nonexclusive, nonsublicensable, nontransferable revocable license to install and use the Software solely in connection with your use of Carrier Residential HVAC products.

B     Documentation. Licensor grants to you a personal, nonexclusive, nonsublicensable, nontransferable, revocable license to make and use a reasonable number of copies of documentation provided with the Software for your internal use in connection with your use of the Software; provided that you reproduce all copyright and other proprietary notices that are on the original copies.

2.         License Limitations.  The license(s) granted in Section 1 are conditioned upon your compliance with the following limitations:

A     Reverse Engineering.  You may not decompile, decipher, disassemble, reverse engineer or otherwise attempt to access source code of the Software, or circumvent any technical limitations in the Software that limit or restrict access to or use of the Software or any content, file, or other work, except as expressly permitted by applicable law notwithstanding this limitation.

B     No Distribution, Rental or Transfer.  You may not distribute, publish, rent, lease, lend, transfer, sublicense, disclose or otherwise provide the Software to any third party.

C     No Modification or Derivative Works. You may not modify or create derivative works of the Software, in whole or in part.

D     Proprietary Notices.  You may not remove any proprietary notices or labels on the Software or any copy thereof.

E      Non-Permitted Uses. Without limiting any of the foregoing, you may not make any use of the Software in any manner not expressly permitted by this Agreement.

3.  Reservation of Rights and Ownership. You acknowledge and agree that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor and service providers reserve and shall retain their entire right, title and interest in and to the Software, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.  

4. Additional Software or Services. This Agreement applies to any updates, supplements, add-on components, and internet-based service components (if any) of the Software that Licensor may, in its sole discretion, provide or make available to you (“Update”). If Licensor provides additional terms along with the Update, those terms will apply to the Update. If Licensor provides you an Update, Licensor may, at its sole discretion, require you to use Update and cease use of early versions. Licensor reserves the right to discontinue any internet-based service (if any) provided or made available to you through the use of the Software. 

5.  Termination.  This Agreement will automatically terminate upon your breach of any of this Agreement’s terms and conditions.  In the event of termination, you must immediately destroy all copies of the Software, and the following Sections of this Agreement will survive: Sections 2, 3 and 5 to 12.

6.  DISCLAIMER OF WARRANTIES. To the maximum extent permitted by applicable law THE SOFTWARE IS PROVIDED AS IS AND WITH ALL FAULTS. Licensor and its parent, affiliates and suppliers hereby disclaim all OTHER warranties and conditions, whether express, implied or statutory, including any IMPLIED warranties, DUTIES or conditions of MERCHANTABILITY OR fitness for a particular purpose.  also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement, LACK OF VIRUSES OR BUGS, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS with regard to THE SOFTWARE. Licensor and its parent, affiliates and suppliers do not warrant that the operation of the softWare will be UNINTERRUPTED or error-free or that any defects will be corrected. THE ENTIRE RISK ARISING OUT OF THE SOFTWARE REMAINS WITH YOU.

7.  Limitations of Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE FOR:

A.   PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES; AND

B.    DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE (EXCLUDING, FOR PURPOSES OF CLARITY, ANY AMOUNT(S) PAID FOR THE PRODUCT AND/OR CONNECTED EQUIPMENT).

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

8.         Indemnification.  You agree to defend, indemnify and hold harmless Licensor and its parent, affiliates and suppliers and their respective officers, directors and employees from all claims and expenses (including attorneys’ fees and costs) that arise out of or in connection with your use of the Software, any breach of this Agreement, or your violation of any laws or regulations or the rights of any third party.

9.  Compliance with Law; Export Restrictions.  You will comply with all applicable international and national laws, rules and regulations that apply to the Software and your use of the Software, including the U.S. Export Administration Regulations, as well as end user, end use, and destination restrictions issued by U.S. or other governments. You acknowledge that the Software is of U.S. origin and subject to U.S. export jurisdiction. 

10. Governing Law and Jurisdiction.  This Agreement will be construed and controlled Indiana law, without giving effect to its conflict of law provisions. Each party consents to exclusive jurisdiction and venue in the state and federal courts in Indianapolis, IN for any and all disputes, claims and actions arising from or in connection with the Software and this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

11. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

12. General.  The section titles in this Agreement are used solely for the parties’ convenience and have no legal or contractual significance. Any list of examples following "including" or "e.g.," is illustrative and not exhaustive, unless qualified by terms like "only" or "solely." Licensor’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. No waiver of any provision of this Agreement will be effective unless it is in a signed writing, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion. If a court of competent jurisdiction holds any term, covenant or restriction of this Agreement to be illegal, invalid or unenforceable, in whole or in part, the remaining terms, covenants and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated. You may not assign, transfer or sublicense this Agreement or your rights (if any) under this Agreement. This Agreement will be binding upon all successors and assigns. This Agreement constitutes the entire agreement between you and Licensor with respect to the Software and merges all prior and contemporaneous communications and proposals, whether electronic, oral or written, between you and Licensor with respect to the Software.  All notices to Licensor in connection with this Agreement must be in writing and will be deemed given as of the day they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested or sent by overnight courier, charges prepaid to the address set forth below.