IMPORTANT NOTICE: This End User License Agreement (“Agreement”) is a binding legal contract between you (“you”) and Johnson Controls International plc. (including its Affiliates such as Johnson Controls, Inc.) with a corporate address at 507 E. Michigan St., Milwaukee, WI (“JCI”, “we”, or “us”). By downloading, installing, accessing or using the accompanying software (the “Software”) you will be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, JCI is not willing to grant you any right to use or access the Software. In such event, you may not download, install, access, use or copy the Software. If this agreement is being agreed to by a company or other legal entity, then the person agreeing to this agreement on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this agreement. You should print and retain a copy of this agreement for your records. Unless a separate agreement is provided, other JCI application software distributed by this Software will also be subject to the terms of this agreement.
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING, ACCESSING OR USING THE SOFTWARE.
Agreement Structure. This Agreement includes Part 1 – General Terms, Part 1A – Supplemental Terms for Interactive Functionality (as applicable), and Part 2 – Country Specific Terms, as applicable. The terms of Part 1A may replace or modify those of Part 1, and the terms of Part 2 may replace or modify those of Part 1 and Part 1A. In the event of a conflict between the terms of any or all of Part 1, Part 1A and Part 2, the terms of Part 2 shall prevail over Parts 1 1A, and the terms of Part 1A shall prevail over Part 1.
PART 1 – General Terms
PART 1A – Supplemental Terms for Interactive Functionality
The following additional terms (“Supplemental Terms”) apply to Software that enables you to remotely access and control JCI hardware product(s) (“Product(s)”) and to the such access and control (collectively, “Interactive Functionality”). In the event of a conflict between the terms of this Part 1A and Part 1, the terms of this Part 1A shall prevail. All terms in Part 1 that are not changed by this Part 1A remain unchanged and in effect.
WARNING: JCI recommends that the Product and any associated Interactive Functionality be completely tested on a regular basis. However, despite frequent testing, performance of the Product and Interactive Functionality is subject to various factors including how the Interactive Functionality is configured, how Product is installed, the Product’s internet connection, occasional server down-time due to maintenance, issues with the cellular network or Internet, criminal tampering or electrical disruption, it is possible for the Product or any Interactive Functionality to fail to perform as expected.
PART 2 - Country Specific Terms
For licenses granted in the countries specified below, the following terms replace or modify the referenced terms in Part 1 and Part 3. All terms in Part 1 and Part 3 that are not changed by these amendments remain unchanged and in effect. This Part 2 is organized as follows:
13.1 Governing Law
The phrase “the laws of the country in which You entered into this Agreement” in Section 13.1 (Governing Law) is replaced by the following language as it applies to the countries identified below:
Americas
Canada: the laws in the Province of Ontario;
Mexico: the federal laws of the Republic of Mexico;
United States, Anguilla, Antigua/Barbuda, Aruba, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana, Saint Kitts and Nevis, Saint Lucia, Saint Maarten, and Saint Vincent and the Grenadines: the laws of the State of Wisconsin, United States;
Venezuela: the laws of the Bolivarian Republic of Venezuela;
Asia Pacific
Cambodia and Laos: the laws of the State of Wisconsin, United States;
Australia: the laws of the State or Territory in which the transaction is performed;
Hong Kong SAR and Macau SAR: the laws of Hong Kong Special Administrative Region (″SAR″);
Taiwan: the laws of Taiwan;
Europe, Middle East, and Africa
Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: the laws of Austria;
Algeria, Andorra, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius,
Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the laws of France;
Estonia, Latvia, and Lithuania: the laws of Finland;
Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the laws of England and Wales; and
South Africa, Namibia, Lesotho, and Swaziland: the laws of the Republic of South Africa.
13.2 Jurisdiction
The following provisions replace Section 13.2 (Jurisdiction) as it applies for those countries identified below:
All rights, duties, and obligations are subject to the courts of the country in which You entered into this Agreement except that in the countries identified below all claims or proceedings arising out of or related to this Agreement, including summary proceedings, will be brought before and subject to the exclusive jurisdiction of the following courts of competent jurisdiction:
Americas
Argentina: the Ordinary Commercial Court of the city of Buenos Aires;
Brazil: the court of Rio de Janeiro, RJ;
Chile: the Civil Courts of Justice of Santiago;
Ecuador: the civil judges of Quito for executory or summary proceedings (as applicable);
Mexico: the courts located in Mexico City, Federal District;
Peru: the judges and tribunals of the judicial district of Lima, Cercado;
Uruguay: the courts of the city of Montevideo;
Venezuela: the courts of the metropolitan area of the city of Caracas;
Europe, Middle East, and Africa
Austria: the court of law in Vienna, Austria (Inner-City);
Algeria, Andorra, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, France, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Monaco, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the Commercial Court of Paris;
Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the courts of England and Wales;
South Africa, Namibia, Lesotho, and Swaziland: the High Court in Johannesburg;
Greece: the competent court of Athens;
Israel: the courts of Tel Aviv-Jaffa;
Italy: the courts of Milan;
Portugal: the courts of Lisbon;
Spain: the courts of Madrid; and
Turkey: the Istanbul Central Courts and Execution Directorates of Istanbul, the Republic of Turkey
13.3 Arbitration
The following paragraph is added as a new Subsection 13.3 (Arbitration) as it applies for those countries identified below. The provisions of this Subsection 13.3 prevail over those of Subsection 13.2 (Jurisdiction) to the extent permitted by the applicable governing law and rules of procedure:
Asia Pacific
Disputes arising out of or in connection with this Agreement will be finally settled by arbitration which will be held in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Center (″SIAC Rules″) then in effect. The arbitration award will be final and binding for the parties without appeal and will be in writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators will be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties will appoint a third arbitrator who will act as chairman of the proceedings. Vacancies in the post of chairman will be filled by the president of the SIAC. Other vacancies will be filled by the respective nominating party. Proceedings will continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator will be the sole arbitrator, provided that the arbitrator was validly and properly appointed.
All proceedings will be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version.
In case no settlement can be reached, the disputes will be submitted to China International Economic and Trade Arbitration Commission for arbitration according to the then effective rules of the said Arbitration Commission. The arbitration will take place in Beijing and be conducted in Chinese. The arbitration award will be final and binding on both parties. During the course of arbitration, this agreement will continue to be performed except for the part which the parties are disputing and which is undergoing arbitration.
Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this Agreement. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a legal action, regardless of form, arising out of or related to this Agreement or any transaction under it more than two years after the cause of action arose; and ii) after such time limit, any legal action arising out of this Agreement or any transaction under it and all respective rights related to any such action lapse.
Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration that shall be held in Jakarta, Indonesia in accordance with the rules of Board of the Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia or ″BANI″) then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the chairman of the BANI. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such proceedings, in the English and/or Indonesian language.
Europe, Middle East, And Africa
All disputes arising out of this Agreement or related to its violation, termination or nullity will be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration will be held in Vienna, Austria, and the official language of the proceedings will be English. The decision of the arbitrators will be final and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, the parties expressly waive the application of paragraph 595 (1) figure 7 of the Code. JCI may, however, institute proceedings in a competent court in the country of installation.
All disputes arising in connection with this Agreement will be finally settled in arbitration that will be held in Helsinki, Finland in accordance with the arbitration laws of Finland then in effect. Each party will appoint one arbitrator. The arbitrators will then jointly appoint the chairman. If arbitrators cannot agree on the chairman, then the Central Chamber of Commerce in Helsinki will appoint the chairman.
Additional Country Specific Amendments
Canada
The following is added as a new Section 18:
For purposes of this Section 18, ″Personal Data″ refers to information relating to an identified or identifiable individual made available by one of the parties, its personnel or any other individual to the other in connection with this Agreement. The following provisions apply in the event that one party makes Personal Data available to the other:
Each party agrees that Personal Data will only be used, accessed, managed, transferred, disclosed to third parties or otherwise processed to fulfill the purpose(s) for which it was made available.
Each party will promptly return to the other or destroy all Personal Data that is no longer necessary to fulfill the purpose(s) for which it was made available, unless otherwise instructed by the other or its personnel or required by law.
If you are a public body subject to public sector privacy legislation, this Section 18 applies only to Personal Data made available to you in connection with this Agreement, and the obligations in this section apply only to ** you **, except that: 1) section (b)(i) applies only to JCI; 2) sections (a)(i) and (d)(i) apply to both parties; and 3) section (d)(ii) and the last sentence in (a)(ii) do not apply.
Peru
The following is added to the end of this Section 9 (Limitation of Liability):
Except as expressly required by law without the possibility of contractual waiver, you and JCI intend that the limitation of liability in this Section 9 (Limitation of Liability) applies to damages caused by all types of claims and causes of action. If any limitation on or exclusion from liability in this section is held by a court of competent jurisdiction to be unenforceable with respect to a particular claim or cause of action, the parties intend that it nonetheless apply to the maximum extent permitted by applicable law to all other claims and causes of action. Additionally, in accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by JCI’s willful misconduct (″dolo″) or gross negligence (″culpa inexcusable″).
United States of America
6. Fees; Taxes
The following is added to the end of Section 6 (Fees; Taxes)
For Software delivered electronically in the United States for which you claim a state sales and use tax exemption, you agree not to receive any tangible personal property (e.g., media and publications) associated with the electronic program. You agree to be responsible for any sales and use tax liabilities that may arise as a result of your subsequent redistribution of the Software after delivery by JCI.
14. General
The following is added to the end of Section 14 (General):
Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement.
Australia
6. Fees; Taxes
The following is added to the end of Section 6 (Fees; Taxes)
Notwithstanding the foregoing, if any government or authority imposes a duty, tax (other than income tax), levy, or fee, on this Agreement or on the Software itself, that is not otherwise provided for in the amount payable, you agree to pay it when JCI invoices you. If the rate of GST changes, you may adjust the charge or other amount payable to take into account that change from the date the change becomes effective.
7. Limited Warranty; Disclaimer
The following is added to the first paragraph of Section 7 (Limited Warranty; Disclaimer):
Although JCI disclaims certain warranties, you may have certain rights under the Competition and Consumer Act 2010 or other legislation and are only limited to the extent permitted by the applicable legislation. If JCI is in breach of a condition or warranty implied by the Competition and Consumer Act 2010, JCI’s liability is limited to the repair or replacement of the goods, or the supply of equivalent goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily obtained for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply.
Hong Kong Sar, Macau Sar, and Taiwan
For licenses obtained in Taiwan and the special administrative regions, phrases throughout this Agreement containing the word ″country″ (for example, ″ the country in which you entered into this Agreement”) are replaced with the following:
India
14. General
The following is added to the end of Section 14 (General):
If no suit or other legal action is brought, within three years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim.
Indonesia
5. Term and Termination
The following is added to the end of Section 5 (Term and Termination):
Both parties waive the provision of article 1266 of the Indonesian Civil Code, to the extent the article provision requires such court decree for the termination of an agreement creating mutual obligations.
Japan
14. General
The following is added to the end of Section 14 (General):
Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust.
Malaysia
7. Limited Warranty; Disclaimer
The word ″SPECIAL″ in Section 7 is deleted.
New Zealand
7. Limited Warranty; Disclaimer
The following is added to the first paragraph of Section 7 (Limited Warranty; Disclaimer):
Although JCI disclaims certain warranties, you may have certain rights under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods which JCI provides, if you require the goods for the purposes of a business as defined in that Act.
9. Limitation of Liability
The following is added to Section 9 (Limitation of Liability):
Where the Software is not obtained for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act.
People's Republic of China
6. Fees; Taxes
The following is added to the end of Section 6 (Fees; Taxes)
All banking charges incurred in the People's Republic of China will be borne by you and those incurred outside the People's Republic of China will be borne by JCI.
9. Limitation of Liability
The following is added to the end of Section 9 (Limitation of Liability)
nothing in these Terms shall exclude any liability of JCI: (i) for the death of or injury to any person; (ii) for damage to property caused by wilful misconduct and/or gross negligence of JCI; (iii) for fraud or fraudulent misrepresentation; or (iv) for any matter which it would be illegal for JCI to exclude or limit or attempt to exclude or limit its liability under PRC law.
Philippines
9. Limitation of Liability
The following replaces the first sentence of Section 9 (Limitation of Liability):
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JCI AND AFFILIATES AND THEIR RESPECTIVE ITS SUPPLIERS AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, (INCLUDING NOMINAL AND EXEMPLARY DAMAGES), INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT DAMAGES, MORAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Singapore
11. Data Collection and Use.
The following is added to the end of Section 11 (Data Collection and Use):
You have the right to request access to your personal information in the possession or under the control of JCI, and to request for corrections to be made on any errors in your personal information. Where possible, JCI will validate personal information provided using generally accepted practices and guidelines, for example, validating such personal information against pre-existing data held by JCI, or request to see supporting documentation before the personal information may be updated.
JCI will retain personal information we process on behalf of our customers for as long as needed to provide services to our customers. JCI may further retain and use this personal information as necessary to comply with our legal obligations, resolve disputes, maintain accurate accounting, financial and other operational records and enforce our agreements. You consent and authorize JCI to collect, use and retain information relating to your use of the Software and/or hardware in the manner set out above.
14. General
The following is added to the end of Section 14 (General):
Subject to the rights provided to JCI’s suppliers and vendors provided in Section 9 (Limitation of Liability), a person who is not a party to this Agreement will have no right under the Contracts (Right of Third Parties) Act (Cap. 53B) to enforce any of its terms.
Taiwan
9. Limitation of Liability
The following is added to the end of Section 9 (Limitation of Liability):
To the extent required by applicable law, the words “AND THEIR RESPECTIVE SUPPLIERS AND VENDORS” are deleted.
European Union Member States
7. Limited Warranty; Disclaimer
The following is added to Section 7 (Limited Warranty; Disclaimer):
In the European Union (″EU″), consumers have legal rights under applicable national legislation governing the sale of consumer goods. Such rights are not affected by the provisions set out in this Section 7 (Limited Warranty; Disclaimer).
EU Member States And The Following Identified Countries
Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has enacted local data privacy or protection legislation similar to the EU model.
14. General
The following is added to the end of Section 14 (General):
In the European Union (″EU″), consumers have legal rights under applicable national legislation governing the sale of consumer goods. Nothing in this Agreement shall in anyway whatsoever be intended to affect or in any way limit such rights, which remain in full force and effect.
(1) Business Contact Information – business-related contact information disclosed by you to JCI, including names, job titles, business addresses, telephone numbers and email addresses of your employees and contractors. For Austria, Italy and Switzerland, Business Contact Information also includes information about you and your contractors as legal entities (for example, your revenue data and other transactional information).
(2) Business Contact Personnel – Your employees and contractors to whom the Business Contact Information related
(3) Data Protection Authority – The authority established by the Data Protection and Electronic Communications Legislation in the applicable country or, for non-EU countries, the authority responsible for supervising the protection of personal data in that country, or (for any of the foregoing) any duly appointed successor entity thereto.
(4) Data Protection & Electronic Communications Legislation – (i) the applicable local legislation and regulations in force implementing EU Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and of EU Directive 2002/58/EC (concerning the processing of personal data and the protection of privacy in the electronic communications sector), as amended or replaced from time to time (such as the General Data Protection Regulation, when and as applicable); or (ii) for non-EU countries, the legislation and/or regulations passed in the applicable country relating to the protection of personal data and the regulation of electronic communications involving personal data, including (for any of the foregoing) any statutory replacement or modification thereof.
JCI Group – Johnson Controls International, Plc, including Johnson Controls, Inc., its subsidiaries, and their respective Business Partners and subcontractors.
(1) to process and use Business Contact Information within JCI Group in support of you and your business including the provision of support services, and for the purpose of furthering the business relationship between you and JCI Group, including, without limitation, contacting Business Contact Personnel (by email or otherwise) and marketing JCI Group products and services (the ″Specified Purpose″); and
(2) to disclose Business Contact Information to other members of JCI Group in pursuit of the Specified Purpose only.
(1) To the extent required by the Data Protection & Electronic Communications Legislation, you represent that (a) you have obtained (or will obtain) any consents from (and has issued (or will issue) any notices to) the Business Contact Personnel as are necessary in order to enable JCI Group to process and use the Business Contact Information for the Specified Purpose.
(2) You authorize JCI to transfer Business Contact Information outside the European Economic Area, provided that the transfer is made on contractual terms approved by the Data Protection Authority or the transfer is otherwise permitted under the Data Protection & Electronic Communications Legislation.
Austria
9. Limitation of Liability
The following is added to the beginning of Section 9 (Limitation of Liability):
THE FOLLOWING LIMITATIONS AND EXCLUSIONS OF JCI’S LIABILITY DO NOT APPLY FOR DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. CIRCUMSTANCES MAY ARISE WHERE, BECAUSE OF A DEFAULT BY JCI IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHER LIABILITY, YOU ARE ENTITLED TO RECOVER DAMAGES FROM JCI.
The following is added to the end of Section 9 (Limitation of Liability):
THE LIMITATIONS AND EXCLUSIONS OF JCI’S LIABILITY DO NOT APPLY FOR DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
The following words are deleted from Section 9 (Limitation of Liability):
“(WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE)”
The following replaces the first sentence (second sentence after the above amendment) of Section 9 (Limitation of Liability):
“TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JCI AND AFFILIATES AND THEIR RESPECTIVE ITS SUPPLIERS AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT DAMAGES OR CONSEQUENTIAL DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.”
Belgium, France and Luxembourg
9. Limitation of Liability
The following replaces the Section 9 (Limitation of Liability) in its entirety:
“EXCEPT AS OTHERWISE PROVIDED BY MANDATORY LAW, JCI’S ENTIRE LIABILITY FOR ALL CLAIMS IN THE AGGREGATE FOR ANY DAMAGES AND LOSSES THAT MAY ARISE AS A CONSEQUENCE OF THE FULFILLMENT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER CAUSE RELATED TO THIS AGREEMENT IS LIMITED TO THE COMPENSATION OF ONLY THOSE DAMAGES AND LOSSES PROVED AND ACTUALLY ARISING AS AN IMMEDIATE AND DIRECT CONSEQUENCE OF THE NON-FULFILLMENT OF SUCH OBLIGATIONS (IF JCI IS AT FAULT) OR OF SUCH CAUSE, FOR A MAXIMUM OF EUR 500,000 (FIVE HUNDRED THOUSAND EURO). THE ABOVE LIMITATION WILL NOT APPLY TO DAMAGES FOR BODILY INJURIES (INCLUDING DEATH) AND DAMAGES TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY FOR WHICH JCI IS LEGALLY LIABLE. UNDER NO CIRCUMSTANCES IS JCI OR ANY OF ITS SUPPLIERS OR VENDORS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND / OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES.
THE LIMITATION AND EXCLUSION OF LIABILITY HEREIN AGREED APPLIES NOT ONLY TO THE ACTIVITIES PERFORMED BY JCI BUT ALSO TO THE ACTIVITIES PERFORMED BY ITS SUPPLIERS AND VENDORS, AND REPRESENTS THE MAXIMUM AMOUNT FOR WHICH JCI AS WELL AS ITS SUPPLIERS AND VENDORS ARE COLLECTIVELY RESPONSIBLE.
France
6. Fee; Taxes
The following replaces the Section 6 (Fee; Taxes) in its entirety:
You will pay the fees, if any, associated with the Software. All amounts due hereunder shall be paid within thirty (30) days of the date of the invoice. Pursuant to article L. 441-6 of the French Commercial Code, late payment penalties as well as a fixed compensation for recovery costs of the amount of 40 Euros (forty Euros) are due in the event that the amounts due are paid after the due date, and this without the necessity of a reminder without prejudice to damages and other expenses that JCI has the right to claim. The late penalties due to, under the mentioned legislation, will be claimed by JCI at the rate equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 percentage points.
All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of JCI) that are imposed by or under the authority of any government or any political subdivision thereof on the fees for the Software shall be borne solely by you, unless you can evidence tax exemption and shall not be considered a part of a deduction from or an offset against such fees. If you lose tax exempt status, you will pay any taxes due as part of any renewal or payment. You will promptly notify JCI if your tax status changes.
You will pay all court costs, fees, expenses and reasonable attorneys’ fees incurred by JCI in collecting delinquent fees.
11. Data Collection and Use
The following replaces the Section 11 (Data Collection and Use) in its entirety:
(1) Data – Data resulting from or otherwise relating to your use of the Software and/or hardware used in connection with the Software.
(2) Data Protection Authority – The authority established by the Data Protection and Electronic Communications Legislation in the applicable country or, for non-EU countries, the authority responsible for supervising the protection of personal data in that country, or (for any of the foregoing) any duly appointed successor entity thereto.
(3) Data Protection & Electronic Communications Legislation – (i) the applicable local legislation and regulations in force implementing the requirements of EU Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and of EU Directive 2002/58/EC (concerning the processing of personal data and the protection of privacy in the electronic communications sector), as amended or replaced from time to time; or (ii) for non-EU countries, the legislation and/or regulations passed in the applicable country relating to the protection of personal data and the regulation of electronic communications involving personal data, including (for any of the foregoing) any statutory replacement or modification thereof.
JCI Group – Johnson Controls International, Plc., including Johnson Controls, Inc., its subsidiaries, and their respective Business Partners and subcontractors.
(1) to process and use your Data within JCI Group for purposes of providing you with service/product recommendations, benchmarking, energy monitoring, and maintenance and support (the ″Specified Purpose″);
(2) to disclose your Data to other members of JCI Group in pursuit of the Specified Purpose only;
(3) to de-identify your Data so that it does not identify you directly or by inference (the “De-Identified Data”);
(4) to use the De-Identified Data for its business purposes, including improvement of the Software, research, product development, product improvement and provision of products and services to JCI’s other customers (collectively, “JCI’s Business Purposes”);
(5) to use, copy, distribute, and otherwise exploit statistical and other data derived from your use of the De-Identified Data for JCI’s Business Purposes.
Italy
4. Metering devices
The following is added to Section 4 (Metering devices): The metering devices and passive restraints mentioned in this Section are those specified in the accompanying order document.
5. Term and termination
The following paragraph is deleted in its entirety from Section 5:
“In addition, either party may, in its sole discretion, elect to terminate this Agreement on written notice to the other party upon the bankruptcy or insolvency of the other party or upon the commencement of any voluntary or involuntary winding up, or upon the filing of any petition seeking the winding up of the other party.”
The following wording is added to Section 5 (Term and termination): Without prejudice to the above, if no term is specified, either party shall have the right to terminate the Agreement at any time by giving the other Party a six months prior written notice.
11 Data Collection and Use
The following replaces the Section 11 (Data Collection and Use) in its entirety:
You acknowledge and agree the Software and/or hardware used in connection with the Software may collect data resulting from or otherwise relating to your use of the Software and/or hardware (“Data”) for purposes of providing you with service/product recommendations, benchmarking, energy monitoring, and maintenance and support. JCI shall have the right and ability to use the De-Identified Data for its business purposes, including improvement of the Software, research, product development, product improvement and provision of products and services to JCI’s other customers (collectively, “JCI’s Business Purposes”). JCI shall have the right to use the Data provided that: (i) the Data have been De-Identified by JCI, so that JCI does not identify You directly or by inference; the Data, as De-Identified, will be used in compliance with the applicable local legislation and regulations in force.
9. Limitation of Liability
The following replaces the Section 9 (Limitation of Liability) in its entirety:
“TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, JCI’S ENTIRE LIABILITY FOR ALL CLAIMS IN THE AGGREGATE FOR ANY DAMAGES AND LOSSES THAT MAY ARISE IN CONNECTION WITH THE FULFILLMENT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER CAUSE RELATED TO THIS AGREEMENT IS LIMITED TO THE COMPENSATION OF ONLY THOSE DAMAGES AND LOSSES PROVED AND ACTUALLY ARISING AS AN IMMEDIATE AND DIRECT CONSEQUENCE OF THE NON-FULFILLMENT OF SUCH OBLIGATIONS (IF JCI IS AT FAULT) OR OF SUCH CAUSE, FOR A MAXIMUM OF EUR 500,000 (FIVE HUNDRED THOUSAND EURO). THE ABOVE LIMITATION WILL NOT APPLY TO DAMAGES FOR BODILY INJURIES (INCLUDING DEATH) AND DAMAGES TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY FOR WHICH JCI IS LEGALLY LIABLE. SAVE IN CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES JCI OR ANY OF ITS SUPPLIERS OR VENDORS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND / OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES.
THE LIMITATION AND EXCLUSION OF LIABILITY HEREIN AGREED APPLIES NOT ONLY TO THE ACTIVITIES PERFORMED BY JCI BUT ALSO TO THE ACTIVITIES PERFORMED BY ITS SUPPLIERS AND VENDORS, AND REPRESENTS THE MAXIMUM AMOUNT FOR WHICH JCI AS WELL AS ITS SUPPLIERS AND VENDORS ARE COLLECTIVELY RESPONSIBLE.
Germany
9. Limitation of Liability
The following replaces the Section 9 (Limitation of Liability) in its entirety:
14. General
The following is added to the end of Section 14 (General):
Any claims resulting from this Agreement are subject to a limitation period of three years, except as stated in Section 7 (Limited Warranty; Disclaimer) of this Agreement.
Ireland
7. Limited Warranty; Disclaimer
The following is added to Section 7 (Limited Warranty; Disclaimer):
Except as expressly provided in these terms and conditions, or Section 12 of the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act, 1980 (the ″1980 Act″), all conditions or warranties (express or implied, statutory or otherwise) are hereby excluded including, without limitation, any warranties implied by the Sale of Goods Act 1893 as amended by the 1980 Act (including, for the avoidance of doubt, Section 39 of the 1980 Act).
United Kingdom
Agreement Structure
The following sentence is added:
Nothing in this paragraph shall be interpreted or construed as excluding or limiting the liability of any person for fraud or fraudulent misrepresentation.
2. Restrictions
The following is added at the end of point (iii):
(if it is necessary for You to decompile the Software, to obtain the information necessary to create an independent program which can be operated with the Software, You will inform JCI that this is the case and will allow JCI a reasonable opportunity to provide such information to You so that it is no longer necessary for You to carry out that decompilation)
9. Limitation of Liability
The following replaces the Section 9 (Limitation of Liability) in its entirety:
FOR THE PURPOSES OF THIS SECTION, A ″DEFAULT″ MEANS ANY ACT, STATEMENT, OMISSION OR NEGLIGENCE ON THE PART OF JCI IN CONNECTION WITH, OR IN RELATION TO, THE SUBJECT MATTER OF AN AGREEMENT IN RESPECT OF WHICH JCI IS LEGALLY LIABLE TO YOU, WHETHER IN CONTRACT OR IN TORT. A NUMBER OF DEFAULTS WHICH TOGETHER RESULT IN, OR CONTRIBUTE TO, SUBSTANTIALLY THE SAME LOSS OR DAMAGE WILL BE TREATED AS ONE DEFAULT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL JCI AND AFFILIATES AND THEIR RESPECTIVE ITS SUPPLIERS AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES; OR WASTED MANAGEMENT TIME OR LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. CIRCUMSTANCES MAY ARISE WHERE, BECAUSE OF A DEFAULT BY JCI IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHER LIABILITY, YOU ARE ENTITLED TO RECOVER DAMAGES FROM JCI. REGARDLESS OF THE BASIS ON WHICH YOU ARE ENTITLED TO CLAIM DAMAGES FROM JCI AND EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, JCI’S ENTIRE LIABILITY FOR ANY ONE DEFAULT WILL NOT EXCEED THE AMOUNT OF ANY DIRECT DAMAGES, TO THE EXTENT ACTUALLY SUFFERED BY YOU AS AN IMMEDIATE AND DIRECT CONSEQUENCE OF THE DEFAULT, UP TO 500,000 EURO (OR THE EQUIVALENT IN THEN-PREVAILING LOCAL CURRENCY) FOR THE PROGRAM THAT IS THE SUBJECT OF THE CLAIM.
NOTWITHSTANDING THE ABOVE, NOTHING IN THIS AGREEMENT WILL OPERATE TO EXCLUDE OR RESTRICT A PARTY’S LIABILITY (IF ANY) TO THE OTHER: (i) FOR DEATH OR PERSONAL INJURY; (ii) FOR FRAUD OR FRAUDULENT MISREPRESENTATION; (iii) FOR BREACH OF ITS OBLIGATIONS ARISING UNDER SECTION 12 SALE OF GOODS ACT 1979; (iii) FOR BREACH OF ITS OBLIGATIONS ARISING UNDER SECTION 2 SUPPLY OF GOODS AND SERVICES ACT 1982; (iv) FOR BREACH OF ITS OBLIGATIONS ARISING UNDER SECTION 8 SUPPLY OF GOODS (IMPLIED TERMS) ACT 1973; OR (v) FOR ANY MATTER FOR WHICH IT IS NOT PERMITTED BY LAW TO EXCLUDE OR LIMIT, OR TO ATTEMPT TO EXCLUDE OR LIMIT, ITS LIABILITY.
Additional Country Specific Amendments
Spain
7. Limited Warranty; Disclaimer
Section 7 (limited warranty; disclaimer) is replaced with the following:
JCI warrants that (i) for a period of thirty (30) days from delivery initial delivery to you (the “Warranty Period”), the Software will operate in substantial conformity with its Documentation; and (ii) it shall use screening software to scan the Software prior to delivery for viruses, Trojan horses, and other malicious code. If, during the Warranty Period, you notify JCI of any non-compliance with the foregoing warranties, JCI will, in its discretion: (a) use commercially reasonable efforts to provide the programming services necessary to correct any verifiable non-compliance with the foregoing warranties; or (b) replace any non-conforming Software; or if neither of foregoing options is reasonably available to JCI, (c) terminate this Agreement in whole or in part, and refund to You the fees, if any, paid for the non-conforming Software (less depreciation calculated on a three (3)-year straight-line basis commencing on the date of initial delivery to you. JCI shall not be liable for failures caused by third party hardware and software (including your own systems), misuse of the Software, or your negligence or willful misconduct. EXCEPT AS PROVIDED IN THIS SECTION, THE SOFTWARE IS PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. THIS WITHOUT PREJUDICE THAT JCI WILL BE LIABLE FOR ANY HIDDEN FAULTS OF THE PRODUCTS PROVIDED, AS WELL AS ANY DAMAGES ARISED AS A RESULT OF PROVIDING A PRODUCT THAT DO NOT CONFORM WITH JCI’S DESCRIPTION, AND/OR THAT IT IS USELESS FOR THE PURPOSES OF THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, JCI AND ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS AND VENDORS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUITE ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. JCI AND AFFILIATES AND THEIR RESPECTIVE ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY JCI OR ANY OF ITS PERSONNEL OR AGENTS SHALL CREATE ANY ADDITIONAL JCI WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF JCI’S OBLIGATIONS HEREUNDER.
9. Limitation of liability
The following is added to the end of this section 9 (limitation of liability):
NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (II) FRAUD OR DECEIT; (III) WILLFULLY COSTS DAMAGES OR (IV) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
11. Data Collection and Use
Section 11 (data collection and use) is modified in the following terms:
You acknowledge and agree that the Software and/or hardware used in connection with the Software may collect data resulting from or otherwise relating to your use of the Software and/or hardware (“Data”). You hereby agree that your Data will be incorporated into a data file controlled by JCI, for the purposes of providing you with service/product recommendations, benchmarking, energy monitoring, maintenance and support, as well as for any purposes related to the execution of this agreement. You may exercise your rights of access, rectification, cancellation and opposition by writing to JCI corporate address stated above, or by contacting us at https://www.johnsoncontrols.com/contact-us, accompanying the request with a copy of an official identifying document. JCI shall be the exclusive owner of all Data. JCI shall have the right to de-identify your Data so that it does not identify you directly or by inference (the “De-Identified Data”). JCI shall have the right and ability to use the De-Identified Data for its business purposes, including improvement of the Software, research, product development, product improvement and provision of products and services to JCI’s other customers (collectively, “JCI’s Business Purposes”.