1.   Scope and Acceptance

1.1   This Cloudware License Agreement (“Agreement”), as it may be amended from time to time, is entered into between Crestron Electronics, Inc., 15 Volvo Drive, Rockleigh, New Jersey, 07647 (USA) (“Crestron”), and you (“Customer”, “you”, or “your”) with respect to the use of Crestron Cloudware, including but not limited to Crestron Fusion® Cloud, Crestron XiO Cloud®, and Crestron Hosted Scheduling.

1.2   This Agreement is incorporated by reference and made a part of each Cloudware order (“Order”) and/or registration form made available by Crestron (“Registration Form”) identifying applicable Crestron Cloudware products or services.  Subject to the descriptions and limitations set forth in the applicable Order and/or Registration Form, and in the documentation provided in print and/or electronic form by Crestron in connection with the Cloudware (“Documentation”), this Agreement governs Customer’s license, access, and use of Crestron Cloudware Accounts (“Accounts”) and Cloudware subscriptions, including Paid Subscriptions and Complimentary Subscriptions (collectively, “Subscriptions”), which run and are accessed on remote internet servers made available to Customer by or on behalf of Crestron, along with the Documentation (collectively, the “Cloudware”).  The Cloudware may be used in connection with the control, automation, scheduling, management, maintenance, monitoring, and registration of Customer buildings, rooms, and devices, including control systems, projectors, displays, lighting, shades, occupancy sensors, conference systems, desk or room scheduling devices, and other devices, but may not be used for emergency response systems, to operate emergency safety devices, or for any other life safety or critical applications.

1.3   By ordering, registering, activating, accessing, or using the Cloudware, including without limitation,  Accounts, Subscriptions, and/or Documentation, in whole or part: (a) you represent and warrant that you have the proper legal authority to enter into this Agreement; (b) you acknowledge that you have read this Agreement in its entirety; and (c) you agree to be bound by all of the terms of this Agreement, and to the prices and conditions provided to you in association with your access and/or your use of the Cloudware.  IF YOU DO NOT INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE CLOUDWARE.

1.4   If you are ordering, registering, activating, accessing, or using the Cloudware on behalf of a third party, you represent that the third party agrees to be bound by the terms and conditions of this Agreement.

2.   Definitions

In this Agreement, the capitalized terms listed below are defined as follows:

2.1   “Cloud Computing Provider” means a third‐party entity that provides internet accessible data centers and network infrastructure, through which Crestron provides Customer with access to Cloudware, for example, Microsoft Azure® cloud hosting services.

2.2   “EU Standard Contractual Clauses” means those standard contractual clauses for the transfer of Personal Data to data processors established in third countries outside the European Economic Area (EEA) member states, the territory of Switzerland, and the territory of the United Kingdom (regardless of its membership status within the European Union), which do not ensure an adequate level of data protection, pursuant to the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, which have been countersigned by Crestron and agreed to by Customer or its authorized representative.

2.3   “International Data Transfer Agreement” means the agreement for the transfer of Personal Data, as defined below, from a first country outside of the United States (US) and the EEA to data processors established in the US and other countries, which is countersigned by Crestron, and agreed to by Customer or its authorized representative.

2.4   “Personal Data” means any information that identifies or can be used to identify an individual. Examples of Personal Data include, but are not limited to, name, address, telephone number, and email address.

2.5   “Privacy and Data Protection Laws” means any and/or all laws, rules, directives and regulations, on any local, provincial, state, federal or national level, pertaining to data privacy, data security and/or the protection of Personal Data including, but not limited to: (a) the General Data Protection Regulation (GDPR), and each European Union Member States’ national implementation thereof; (b) the Australian Privacy Act 1988 (Cth), the Australian Privacy Amendment (Enhancing Privacy Protection Act) (2012); (c) the Canadian Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (PIPEDA); (d) the Personal Data Protection Act 2012 of Singapore (PDPA); (e) United States privacy and data protection laws including without limitation, (i) the California Consumer Privacy Act (CCPA) of 2018 as amended by the California Privacy Rights Act of 2020 (CPRA), (ii) the Connecticut Data Privacy Act (CTDPA), (iii) the Virginia Consumer Data Protection Act (VCDPA), and (iv) the Utah Consumer Privacy Act (UCPA), as applicable; (f) additional privacy and data protection laws applicable to Customers’ location; and (g) any successor legislation or regulations applicable thereto.

3.   Ownership; License Grant; and Payment

3.1   Ownership.  Crestron is and will remain the sole and exclusive owner of all intellectual property rights, title, and interest in and to the Cloudware, including any modifications and improvements thereto or derivatives thereof, with the exception of any third‐party components of the Cloudware.  Customer shall have no obligation to provide Crestron with any ideas, suggestions, recommendations, or comments (“Feedback”) relating to the Cloudware; however, to the extent Customer provides any Feedback to Crestron, Crestron, in its sole discretion, may freely use or incorporate such Feedback for any purpose, without any obligation, restriction, or payment of royalty.

3.2   Customer Data.  The Customer’s electronic information which is collected and processed in the Cloudware (“Customer Data”) belongs to Customer, and Crestron makes no claim to any right of ownership in it.  Customer Data may include Personal Data other than Sensitive Personal Information, as defined below.  The Customer Data that is collected and/or processed by the Cloudware is described in the Crestron Privacy Statement Regarding Internet Data Collection, available at: https://www.crestron.com/legal‐data‐collection‐privacy.

3.3   License Grant.  Subject to the terms and conditions of this Agreement and the EU Standard Contractual Clauses and/or International Data Transfer Agreement, where applicable, and as described in the applicable Order and/or Registration Form, Crestron hereby grants to Customer, solely for Customer’s internal business purposes, a limited, non‐exclusive, and non‐transferable license to:

   (a)   access and use the Cloudware Subscriptions on the number of devices, in the number of rooms, at the specific locations, for the term (“Subscription Term”), and/or as otherwise recited in the Order and/or Registration Form, subject to review and confirmation by Crestron (“Usage Limits”);

   (b)   access and use the Cloudware Account to register, configure, and/or manage certain Crestron products and services; and/or

   (c)   access and use the Documentation in connection with Accounts and/or Subscriptions and copy the Documentation for back‐up and archival purposes only.

3.4   Reservations.  Customer is not granted any proprietary right, title, interest, or ownership in the Cloudware and Crestron reserves all rights not expressly granted to Customer under this Agreement.  Customer has no right to receive a copy of any object code or source code of the Cloudware.  Further, this Agreement does not authorize Customer to use, alter, modify, remove, or conceal any name, trademark or logo of Crestron.

3.5   Payment Obligations.  The above License Grant is subject to the payment to Crestron by Customer or its Crestron authorized reseller (“Authorized Reseller”) of all applicable fees associated with each paid Subscription (“Paid Subscription”).  In the event such associated fees are not paid when due, Crestron reserves the right, at its sole discretion, to terminate the Paid Subscription, or downgrade the Paid Subscription to a Complimentary Subscription, if available.  Downgrading the Paid Subscription to a Complimentary Subscription during a period of non-payment shall have no effect on the Term of this Agreement nor on Customer’s responsibility for the associated fees.  In the event Customer does not meet its Usage Limits during a Subscription Term, any associated prepaid fees shall be non-refundable.

3.6   Excess Usage.   In the event that Customer reaches or exceeds the Usage Limits associated with an XiO Cloud Paid Subscription, Crestron will notify Customer via email.  In the event that Customer exceeds the Usage Limits of the XiO Cloud Paid Subscription during any year of the Subscription Term, Crestron will provide Customer with a “True-Up Statement” following the anniversary of the Paid Subscription, comparing Customer’s actual usage during that year with the Usage Limits associated with their Paid Subscription, and identifying the resulting excess usage (“Excess Usage”) for the preceding Paid Subscription year and any remaining years of the Paid Subscription Term.  Customer shall be responsible to purchase and apply to their Account, within sixty (60) days of their receipt of the True-Up Statement, additional Paid Subscription coverage for the Excess Usage, as set forth in the True-Up Statement.  If Customer fails to do so, Crestron reserves the right in its sole discretion, in addition to its other rights and remedies hereunder, to remove Cloudware access to devices and/or rooms which exceed the Usage Limits.

4.   Complimentary Cloudware

4.1   Crestron may license certain Cloudware on a complimentary, no‐charge, free or promotional basis, provided “as‐is” without warranty of any kind, including without limitation: (a) Accounts that may be used to register, configure, and/or manage certain Crestron products or services; and (b) premium and/or free trial Subscriptions, and/or free non-premium Subscriptions (“Complimentary Subscriptions”), subject to the terms of this Agreement.

4.2   Complimentary Cloudware has no cash value and may not be refunded or redeemed for cash or credit, regardless of functionality, usage, termination, or availability.

4.3   Crestron may, in its sole discretion, discontinue, terminate, or modify the Complimentary Cloudware at any time at its sole discretion, including without limitation, downgrade a premium trial Subscription to a non-premium Subscription, if available.

4.5   With the exception of Section 6.1(b), Crestron shall have no warranty obligations under Section 6 with regard to Complimentary Cloudware.  With the exception of requests for deletion of Customer Data in accordance with Section 9.3, upon termination or expiration of a Complimentary Subscription or Account, Crestron shall have no obligations under Section 9.

5.   Conditions of Use

5.1   Restrictions.  Customer shall use the Cloudware only for its own internal business purposes and shall make the Cloudware available only to its employees, representatives, independent contractors, or invitees, who agree to be bound by the terms and restrictions set forth in this Agreement with regard to their access and use of the Cloudware.  Customer may not (and shall ensure that its employees, contractors and agents do not): (a) sell, rent, or lease the Cloudware; (b) make the Cloudware available to anyone who is not an authorized user; (c) create any derivative works or improvements based upon the Cloudware; (d) copy any feature, design or graphic in, or reverse engineer the Cloudware; (e) access the Cloudware in order to build or assist someone else to building a competitive solution; (f) use the Cloudware in a way that violates any criminal or civil law; (g) perform any security scan, load test on the Cloudware, interfere with or disrupt in any manner with the hosting, integrity, performance, or security of the Cloudware or third-party data contained in the Cloudware, or attempt to gain unauthorized access to the Cloudware or its related software, systems, or network; or (h) exceed the Cloudware usage or territorial limits recited in the Order, the Registration Form, and/or the Documentation, or established in the Cloudware.  Crestron reserves the right to restrict Customer from exceeding the Usage Limits recited in the Order and/or Registration Form by preventing Customer from adding devices and/or rooms exceeding the recited Usage Limits, or in Crestron’s sole discretion, by removing Cloudware access to devices and/or rooms which exceed the recited Usage Limits.

5.2   Customer Obligations.  It is the Customer’s responsibility to configure Cloudware on Customer’s IT infrastructure in a manner compatible with the Documentation and consistent with all applicable Privacy and Data Protection Laws and security requirements.  It is the Customer’s responsibility to coordinate with an Authorized Reseller to the extent applicable and as agreed to by the Customer and Authorized Reseller.  The Customer shall provide network capability, along with hardware and software that is compatible with the Cloudware, as described in the Documentation.

5.3   Technical Safeguards.  Customer agrees that it will use all commercially reasonable technical safeguards to prevent Crestron from any access to personal or non‐public information resident on any Customer IT infrastructure, the compromise of which could result in tangible harm to an individual, including but not limited to national identification numbers, financial information, information about children, criminal records, health information, genetic characteristics, biometric data, political opinions, religious or philosophical beliefs, sexual preferences, or information regarding one or more factors specific to an individual’s physical, physiological, mental, economic, cultural, racial, ethnic, or social identity (“Sensitive Personal Information”).  Crestron refuses to accept and Customer agrees not to provide Crestron with any access to such Sensitive Personal Information in connection with any use of the Cloudware.

5.4   Cloudware Upgrades and Updates.  Crestron regularly upgrades and updates the Cloudware.  This means that the Cloudware products offered by Crestron are continually evolving.  Some of these changes will occur automatically in the background, while others may require Customer to schedule and implement the changes.  The changes may also mean that Customer will need to upgrade its equipment in order to make continued efficient use of the Cloudware.  Customer may have legitimate business reasons for not upgrading Crestron Fusion Cloudware to a new version as soon as it becomes available, however, one (1) year after the release of a new version, Crestron may remove Customer’s access to an older version and upgrade Customer to the latest version of Crestron Fusion Cloudware.

6.   Warranty

6.1   Crestron represents and warrants that: (a) the Cloudware will function substantially as described in the Documentation; and (b) Crestron owns or otherwise has the right to provide access to the Cloudware to Customer under this Agreement.

6.2   If the Cloudware does not function substantially in accordance with the Documentation, Crestron shall, at its option, either: (a) modify the Cloudware to conform to the Documentation; or (b) provide a workaround solution that will substantially meet the Documentation.  If neither of these options is commercially feasible, either party may terminate the relevant Paid Subscription under this Agreement, in which case Crestron shall refund to Customer all fees pre‐paid to Crestron under the associated Order for the unused portion of the Paid Subscription Term.

6.3   If the normal operation, possession, or use of the Crestron Cloudware by Customer is found to infringe any third party intellectual property right or Crestron believes that this is likely, Crestron shall, at its option, either: (a) obtain a license from such third party for the benefit of Customer; or (b) modify the Cloudware so that the Cloudware no longer infringes.  If neither of these options is commercially feasible, either party may terminate the associated Paid Subscription, in which case Crestron shall refund to Customer, as its sole remedy, all fees pre‐paid to Crestron under the associated Order for the unused portion of the Paid Subscription Term.

6.4   Crestron has no warranty obligations for: (a) Customer’s use of a version of the Cloudware other than the most recent version of the Cloudware (see Section 5.4); (b) Customer’s use of the Cloudware in a manner other than that for which it was intended, including in violation of this Agreement; (c) issues caused by any third party software or hardware; (d) issues caused by the actions of any third party; (e) other matters beyond Crestron’s reasonable control; or (f) any Complimentary Cloudware, as recited in Section 4.5.

7.   Customer Data

7.1   The operation of the Cloudware requires the processing of Customer Data.  If Customer does not consent to such processing, they shall not license, access, or use the Cloudware.  Opting out of the processing of Customer Data will prevent the Cloudware from functioning.

7.2   Customer shall provide all data for use in the Cloudware, and Crestron is not obligated to modify or add to the Customer Data.  Customer (a) is solely responsible for the content and accuracy of the Customer Data; (b) consents to having its Customer Data transmitted, collected, processed, and stored by Crestron as detailed in the Crestron Privacy Statement Regarding Internet Data Collection and by Crestron’s selected Cloud Computing Provider, in accordance with their applicable privacy and security policies, in the United States and/or other locations; and (c) represents and warrants to Crestron that it has (i) collected and processed Customer Data in compliance with all applicable Privacy and Data Protection Laws, and (ii) obtained all rights and consents necessary under applicable Privacy and Data Protection Laws to provide the Customer Data to Crestron and its Cloud Computing Provider, and to permit the processing of such Customer Data for purposes of this Agreement including, but not limited to, in connection with the transfer of the Personal Data pursuant to Section 8.

7.3   Crestron shall only process the Customer Data as reasonably necessary to meet our obligations and exercise our rights under the Agreement, to provide, administer, analyze, maintain, support, secure, and improve the Cloudware under this Agreement, and for no other purpose.  Crestron may: (a) observe and report back to Customer on Customer’s usage of the Cloudware, including for purposes of account administration, renewal, and calculation of Excess Usage; and/or (b) make recommendations for Customer’s improved usage of the Cloudware.  Customer consents to such processing.

7.4   Crestron will take appropriate technical and organizational measures to maintain the security of Customer Data and protect it against accidental loss or unlawful destruction, alteration, disclosure, or access.  All internet communication containing Customer Data in‐transit to and from Crestron and/or a Cloud Computing Provider is encrypted using then‐current industry standard strong encryption technologies, such as Secure Socket Layer (SSL) standard security technology, and all Customer Data stored at‐rest is encrypted using then current industry strong encryption technology.  However, no security system is impenetrable.  Crestron cannot guarantee the security of its databases or those of its selected Cloud Computing Provider, nor guarantee that the Customer Data will not be intercepted while being transmitted over the internet.

7.5   Crestron may use or disclose aggregated and/or anonymous data which is collected and processed in the Cloudware for a variety of purposes, including marketing, analytics, and improvement of Crestron products and services, by removing any attributes that may link or associate the data with the Customer or any individual.  Crestron is committed to maintain such data in the aggregated and/or anonymous form and not to attempt to reidentify the data.

8.   Privacy and Data Protection Laws

8.1   Both Crestron and Customer shall comply with Privacy and Data Protection Laws applicable to the performance of their respective obligations pursuant to this Agreement.  To the extent applicable to each Order and/or Registration Form, Customer acknowledges and agrees to the associated EU Standard Contractual Clauses and/or International Data Transfer Agreement, each of which are countersigned by Crestron, available at: https://www.crestron.com/Legal/software-products-on-premises-and-cloudware.

8.2   Notwithstanding any other provision herein, any Customer that processes the Personal Data of natural persons from the European Economic Area (EEA) member states, the territory of Switzerland, and the territory of the United Kingdom (regardless of its membership status within the European Union) hereby unambiguously consents to the transfer of such Personal Data included in the Customer Data to the United States and other countries deemed by the European Commission not to provide adequate security for such Personal Data.  Crestron may, at its discretion and on giving reasonable written notice to Customer, elect to have such transfers governed by the Privacy Shield or such other successor program for the transfer of Personal Data from the EEA to the United States, as approved by the US Department of Commerce and the European Commission, instead of the EU Standard Contractual Clauses.

8.3   In the event that international data transfer agreements, (including, as applicable, the EU Standard Contractual Clauses), are no longer deemed to provide adequate protection for the cross‐border transfer of Personal Data from any country under applicable Privacy and Data Protection Laws, and if the Personal Data involves data that is subject to any country’s Privacy and Data Protection Laws which require that an acceptable transfer mechanism be in place, Crestron and Customer shall cooperate in good faith to implement an acceptable alternative method to allow the transfer of such data in compliance with applicable Privacy and Data Protection Laws.  In the event no method is agreed upon, Crestron may, at its election, terminate the Agreement upon written notice to Customer without further liability.

9.   Term and Termination

9.1   Term.  This Agreement starts on the date that Customer first registers or activates the Cloudware and automatically terminates when Crestron no longer provides Customer with any access to the Cloudware, as follows:

   (a)   Paid Subscriptions automatically expire at the end of the Subscription Term, unless terminated earlier or renewed per the terms of this Agreement.  Prior to the expiration of each Paid Subscription, Crestron, at its sole discretion, may make available a Subscription renewal based on its then available Cloudware offerings.  Renewal terms may be based on Customer’s use of the Cloudware during the preceding Subscription Term, including the number and type of connected devices and/or rooms and any Excess Usage. Renewals may be offered subject to Customer’s purchase of any applicable Paid Subscription coverage for Excess Usage, as set forth in a True-Up Statement pursuant to Section 3.6.  Upon expiration of a Paid Subscription without renewal, Crestron reserves the right, at its sole discretion, to either terminate the Paid Subscription, or downgrade the Paid Subscription to a Complimentary Subscription, if available.  In the event Customer terminates a Paid Subscription prior to the end of the Subscription Term without cause, and/or does not meet its Usage Limits during a Subscription Term, any associated prepaid fees shall be non-refundable.

   (b)   Complimentary Subscriptions automatically expire at the end of the Subscription Term, or after six months of inactivity if a Subscription Term is not provided, unless renewed or terminated earlier by Crestron at its sole discretion, per Section 4, or terminated by Customer. 

   (c)   Customer’s Accounts may be terminated by either Crestron or Customer when they are inactive and no longer associated with either a Subscription or any registered Crestron product or service.

9.2   Termination for Cause.  Either party may terminate rights granted under this Agreement if the other breaches any material term of this Agreement, including without limitation if Customer breaches Sections 3.5 or 3.6, and the breach is not cured within thirty (30) days of written notice. Crestron also has the right to immediately suspend or terminate use of the Cloudware if Customer breaches Section 3 (with the exception of Sections 3.5 and 3.6), Section 5, or Section 7.2. Upon any termination for Crestron’s material breach of the Agreement, Crestron will refund to Customer any prepaid fees for a Paid Subscription covering the period from the effective date of termination to the end of the Subscription Term. Upon any termination for Customer’s material breach of the Agreement, Customer will pay any unpaid fees for the Paid Subscription covering the full Subscription Term.

9.3   Effect of Termination/Expiration.  Upon termination or expiration of this Agreement, Customer’s right to use the Cloudware will terminate.  Customer must destroy any copies of any software and/or Documentation within its control.  Crestron shall, upon written request, delete the Customer Data and confirm such deletion in writing.  Upon written request received by Crestron within thirty (30) days of termination or expiration of a Paid Subscription, Crestron may provide Customer with the Customer Data associated with an applicable Paid Subscription in a commercially reasonable electronic and interoperable format which allows for further use by the Customer.  Crestron reserves the right to require the Customer to reimburse Crestron for its reasonable costs incurred in providing the Customer Data.  Notwithstanding the above, Crestron may retain Customer Data for an additional period of up to three (3) years, or longer if required by law.

9.4   End of Life.  Crestron reserves the right to end-of-life (“EOL”) the Cloudware by providing prior written notice either on Crestron.com, via email, or through the Cloudware.  If Customer prepaid the fee for a Paid Subscription and it becomes subject to EOL before the expiration of the Paid Subscription, Crestron will use commercially reasonable efforts to transition Customer to a substantially similar Cloudware offering, if feasible.  If Crestron does not have a substantially similar Cloudware offering, then Crestron will refund to Customer any prepaid fees covering the period from the last date the EOL Paid Subscription is available through the end of the Subscription Term.

9.5   Survival.  Provisions that survive termination or expiration of this Agreement are those relating to ownership, limitation of liability, confidentiality, payment and others which by their nature are intended to survive.

10.   Warranty Disclaimer and Limitation of Liability

10.1   EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE CLOUDWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND CRESTRON MAKES NO OTHER WARRANTIES OF ANY KIND, NOR AUTHORIZES ANY OTHER PARTY TO OFFER ANY WARRANY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.  CRESTRON DOES NOT WARRANT THAT THE USE OF THE CLOUDWARE WILL BE UNINTERRUPTED OR ERROR‐FREE, AND CRESTRON MAKES NO WARRANTY AS TO THE CLOUDWARE’S OPERABILITY WITH REGARD TO CUSTOMER’S OR PUBLIC INTERNET INFRASTRUCTURES.

10.2   NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (PROPERTY OR ECONOMIC DAMAGES INCLUSIVE), INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY.

10.3   CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY CRESTRON OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO CRESTRON, AND REFUND OF A PRORATED PORTION OF THE FEES THAT CUSTOMER HAS PAID.   Crestron’s maximum liability TO CUSTOMER for all claims and/or damages arising out of or related to the  Cloudware and/or the Agreement, whether in contract or tort, or otherwise, shall in no event exceed, in the aggregate, the total amounts actually paid to Crestron BY CUSTOMER UNDER THIS AGREEMENT for the Paid Subscription TERM during which the claim and/or damages arose.

11.   General

11.1   Entire Agreement.  This Agreement, together with the applicable Order and Registration Form, along with the EU Standard Contractual Clauses and/or International Data Transfer Agreement if applicable, constitutes the complete and exclusive statement of the agreement among the parties regarding the described subject matter.  It supersedes all prior written and oral statements, including any prior representation or statement.  If there is a conflict between the Agreement and an Order and/or Registration Form, the Agreement will prevail.

11.2   Waiver, Amendment, and Severability.  Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or any other provision of this Agreement.  Crestron reserves the right to amend the Agreement from time to time.  We invite you to always consult the latest version of this Agreement, posted at https://www.crestron.com/Legal/software-products-on-premises-and-cloudware/cloudware-license-agreement.  Your continued use of the Cloudware, following the posting of any amendments, will signify your acceptance of those amendments.  However, for Paid Subscriptions, to the extent that any such amended terms impose additional payment obligations on the Customer, such payment obligations will only apply to Orders and renewals received or effectuated after the date of the amendment.  If any term of this Agreement is found, by a proper authority, to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of the Agreement.

11.3   Assignment.  Customer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Crestron (which shall not be unreasonably withheld).

11.4   Compliance with Laws.  Crestron and Customer shall each comply with all applicable laws, rules, and regulations applicable to its performance under this Agreement including, but not limited to, the US Commerce Department’s Export Administration Regulations, and the US Department of Treasury's Office of Foreign Asset Control (OFAC).  The Cloudware is of US origin for purposes of US export control laws.

11.5   Force Majeure.  Neither party shall be liable for failure of performance or delays due to any act of God, war, sabotage or terrorism, act of government or any agency thereof, fire, flood, explosion, natural disaster or similar catastrophic occurrence, epidemic or quarantine restriction, or such other similar extreme circumstances beyond that Party’s reasonable control, including without limitation the stability or availability of the internet or portions thereof.  Each party shall use commercially reasonable efforts to minimize the extent of any such delay.

11.6   Statute of Limitations.  Except for actions for nonpayment or breach of Crestron’s proprietary rights, the parties agree that any action in relation to an alleged breach of this Agreement shall be commenced within two (2) years of the date of the breach, without regard to the date the breach is discovered.  Any action not brought within that two (2) year time period shall be barred, without regard to any other limitations period set forth by law or statute.

12.   Governing Law and Dispute Resolution

12.1   Governing Law and Dispute Resolution.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA, without regard to conflict of laws principles.  All disputes arising out of or in connection with this Agreement shall be finally and exclusively settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules.  The arbitration proceeding shall be conducted in New York, New York.  The language to be used in the arbitration proceeding shall be English.  If binding arbitration is not allowable in a particular jurisdiction, then: (a) before initiating any legal proceeding, Customer agrees to report any issue or concern to Crestron; (b) Customer agrees to negotiate with Crestron in good faith to resolve each issue or concern; and then (c) either Customer or Crestron may initiate a legal proceeding if Customer’s issue or concern is not resolved within thirty (30) days of receipt of notice by Crestron.

12.2   Injunctive Relief.  Notwithstanding the foregoing requirement that disputes be subject to binding arbitration, the parties shall retain the right to seek equitable or injunctive relief from any court of competent jurisdiction without the requirement of posting any bond.

12.3   NO CLASS ACTIONS.  CUSTOMER MAY ONLY RESOLVE DISPUTES WITH CRESTRON ON AN INDIVIDUAL BASIS.  CUSTOMER MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.  CUSTOMER UNDERSTAND AND AGREE THAT CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER LEGAL PROCEEDINGS IS NOT PERMITTED.

12.4   The provisions of this Section 12 are applicable to this Agreement, except to the extent prohibited by law or by international data transfer agreements, including the EU Standard Contractual Clauses.

13.   Translations

This document has been originally drafted in the English language.  The parties expressly agree and acknowledge that the English version of the document will prevail over any other language translation of this document.

14.   Contact Crestron

If you have any questions, please contact Crestron.

Via e‐mail: satisfaction@crestron.com, or support@crestron.com

Via post:

The Americas:
Crestron Electronics, Inc.
15 Volvo Dr.
Rockleigh, NJ 07647 USA

Europe, Middle East, and Africa (EMEA):
Crestron Europe BV
Stephensonstraat 20, bus 0001
2800 Mechelen, Belgium
VAT No. BE0699.717.121

Australia and New Zealand:
Crestron ANZ PTY. Ltd.
Level 5, 15 Help Street,
Chatswood NSW 2067, Australia

Asia:
Crestron Singapore Pte. Ltd.
30 Cecil Street
#21‐05, Prudential Tower
Singapore 049712

Via phone:

Please visit www.crestron.com to find the phone number for Crestron support in your region.

 

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