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Trial Agreement

 TRIAL CERTIFICATE AGREEMENT
For the ZigBee Smart Energy Security Profile
IMPORTANT! Carefully read this Limited Trial Certificate Authorization
Agreement (the “Agreement”) as set out below. If
you accept these terms and conditions, please type “I
ACCEPT” in the box below. That action is the equivalent of
your signature and indicates you have read this Agreement, understand
and accept all the terms and conditions and that you intend to be
legally bound by them. If you do not agree with the terms of this
Agreement, please click on the “cancel” button
below to exit this web page and do not download or run the Software or
use any Certificates.
This Limited Trial Certificate Authorization Agreement
(“Agreement”), is made effective as of the date the
terms are accepted as indicated above (the “Effective
Date”) by and between Certicom Corp.
(“Certicom”), a Canadian corporation with a
principal place of business at 5520 Explorer Drive, 4th Floor,
Mississauga, ON L4W 5L1 and you (“Manufacturer”).
Certicom maintains and operates a secure Public Key Infrastructure
(PKI) for issuing authorized and secure Digital Certificates that may
be embedded in devices built to Manufacturer’s specifications
(the "Specifications"). Digital Certificates allow for authentication
and key agreement of ZigBee Smart Energy devices manufactured or
branded by Manufacturer.
Certicom hereby grants to Manufacturer the limited right to obtain and
embed Digital Certificates in its Devices in accordance with the terms
and conditions of this Agreement.
MANUFACTURER HAS READ AND AGREES TO BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE TERMS CONTAINED ON THE
FOLLOWING PAGES HEREOF.
1.0 Definitions
1.1.“Compliant” means that the Device is Certified
or Qualified by the Manufacturer to adhere to ZigBee Smart Energy
profile specifications.
1.2.“Certificate Manager” means a service manager
identified by Certicom that manages certain aspects of the Certicom
PKI.
1.3.“Device” means Manufacturer's Compliant
product.
1.4.“Digital Certificate” means those device
digital certificates as described in the ZigBee Smart Energy profile
specifications.
1.5.“Trustpoint” means the Certicom branded
Certification Authority which is signed by Certicom’s Root
CA.
1.6."Public Key Infrastructure" (PKI) means the architecture,
organization, techniques, practices, and procedures that collectively
support the implementation and operation of a digital certificate-based
public key cryptographic system.
1.7. “Wrongful Use” means Manufacturer has
knowingly or with gross negligence embedded a Digital Certificate in a
Device or any other product or application that is not Compliant.
2.0 Digital Certificate Authorization
2.1. Upon receipt of a complete and executed Agreement, and
verification of Manufacturer's identity for security purposes, Certicom
hereby authorizes Manufacturer to receive Digital Certificates issued
from the Certicom test certificate site.
3.0 Use of Digital Certificates and Request/Receipt of Certificates
3.1.Trial Use Only. Manufacturer acknowledges and agrees that use of
the Digital Certificates is for TRIAL purposes only directly related to
the testing of the Device with the ZigBee Smart Energy Security Profile
and the Certicom PKI. Manufacturer agrees that it will not use the
Digital Certificates for any commercial purposes or deploy such
certificates into non-test environments.
3.2.Use of Certicom IP in ZigBee Smart Energy Profile devices under
test . Certicom hereby grants Manufacturer a temporary license for the
necessary protocol IP owned by Certicom for use solely in connection
with devices undergoing certification and interop testing as
contemplated hereby. This license does not extend to any commercial use
of the devices or to use of any products or tools which generate or
sign certificates.
3.3.No Other Rights. Certicom retains all right, title, and interest in
and to the Certicom root certificates and any associated trade secrets
or other proprietary information associated therewith that is provided
by Certicom to Manufacturer hereunder. Certicom grants no rights in any
trademark, trade name, service mark, business name or goodwill of
Certicom.
4.0 Term and Termination
4.1.Term. The term of this Agreement shall begin on the Effective Date
and shall continue for a term of sixty (60) days. Upon expiry of the
term, Manufacturer shall immediately cease all use of Certicom
intellectual property and Digital Certificates.
4.2.Termination by Certicom. Certicom may terminate this Agreement:
(i)for material breach of this Agreement by Manufacturer, where such
breach is not cured within five (5) days of notice to Manufacturer; or,
where such breach in incapable of cure at the time of the material
breach. Examples of breach include, but are not limited to:
Manufacturer's Digital Certificate private keys have been lost, stolen,
intercepted or otherwise compromised in any way, a court or
governmental agency orders Certicom to revoke Manufacturer
authorization, or a series of non-material breaches of this Agreement
by Manufacturer; and
(ii)by Certicom giving not less than ten (10) days notice of
termination to Manufacturer.
4.3.Termination for Wrongful Use. If this Agreement is terminated due
to Wrongful Use, in addition to revoking Certicom’s
authorization for Manufacturer to receive Digital Certificates,
Certicom shall receive all net revenue Manufacturer receives from
Wrongful Use. Certicom’s receipt of revenue from Wrongful Use
is in addition to any damages Certicom is entitled to receive by law.
4.4.Effect of Termination or Certificate Revocation. If this Agreement
is terminated, or a Digital Certificate is revoked, Manufacturer shall
immediately discontinue using such Digital Certificate(s) and cease
embedding or otherwise using such Digital Certificate(s) in any or all
affected Device(s). Manufacturer shall keep secret or destroy any
unused or revoked Digital Certificate private keys, and take such other
action as is reasonably directed by Certicom. Notwithstanding any
termination of this Agreement, any un-revoked Digital Certificate(s)
used in Device(s) that are no longer under the control of Manufacturer
shall be valid until the expiration of their validity period.. Except
where the Agreement is terminated by Certicom pursuant to clause
4.3(ii), Manufacturer shall immediately pay all amounts owed to
Certicom and shall not be entitled to any refund of amounts paid.
5.0 Fees
5.1.Fees. Certicom waives all fees for the purposes of the
non-commercial trial use of the Digital Certificates issued hereunder
and the related Certicom Public Key Infrastructure.
6.0 Warranty. Indemnity, Limitation of Liability
6.1.Indemnification. Manufacturer shall indemnify and hold harmless
Certicom, its members, directors, employees, and agents (including the
entity that holds the Device Root CA and the entity(ies) that hold
Trustpoint that issued the Digital Certificates), for any claim arising
from or related to Manufacturer's use and implementation of the Digital
Certificates, including, without limitation, (i) Wrongful Use; (ii)
unauthorized use of a Digital Certificate; or (iii) any circumstances
that may give rise to the compromising of the PKI in any way. Such
indemnification obligations shall be subject to: (i) Certicom notifying
Manufacturer, in writing of any such claim and (ii) Manufacturer having
the sole control of the defense and all negotiations for any settlement
or compromise of such claim, provided, however, that Certicom may
participate in such defense using counsel of its own choice and at its
sole expense.
6.2.Disclaimer of Warranties. USE OF THE DIGITAL CERTIFICATES
AUTHORIZED HEREUNDER ARE PROVIDED "AS IS" AND CERTICOM DISCLAIMS ALL
REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT,
ACCURACY, SECURITY, OR NON-INFRINGEMENT. THE ENTIRE RISK OF THE USE OF
TRUSTPOINT AND ANY DIGITAL CERTIFICATES OR ANY SERVICES PROVIDED IN
RESPECT TO THE FOREGOING OR THE VALIDATION OF DIGITAL SIGNATURES SHALL
BE BORNE SOLELY BY MANUFACTURER.
6.3.Limitation of Liability. WITH THE EXCEPTION OF MANUFACTURER'S
"WRONGFUL USE", IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS
AGREEMENT FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES
INCLUDING, WITHOUT LIMITATION, DAMAGES WHICH REFLECT LOST BUSINESS,
PROFITS OR REVENUE OBTAINED OR LOST, OR THE COSTS OF RECONSTRUCTING
DATA OR REBUILDING DEVICES, WHETHER DAMAGES OF THIS NATURE WERE
FORESEEABLE OR NOT, AND EVEN IF THAT PARTY HAD BEEN ADVISED THAT
DAMAGES OF THIS NATURE WERE POSSIBLE. IN NO EVENT SHALL EITHER PARTY BE
LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY AMOUNT EXCEEDING
THE FEES ACTUALLY RECEIVED BY CERTICOM FROM MANUFACTURER.
6.4.Manufacturer Liability for Manufacturer Supplied Information.
Manufacturer is solely liable for the resulting Digital Certificates
created.
6.5 THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN AND EVEN IF
CERTICOM OR ANY OF ITS AGENTS, SUPPLIERS, EMPLOYEES, HAVE BEEN ADVISED
OF THE POSSIBILITY OF THOSE DAMAGES. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR
INCIDENTAL DAMAGES, SO THESE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
THE DISCLAIMERS OF REPRESENTATIONS, WARRANTIES, AND CONDITIONS AND THE
LIMITATIONS ON LIABILITIES AND REMEDIES IN THIS AGREEMENT CONSTITUTE AN
ESSENTIAL PART OF THIS AGREEMENT. MANUFACTURER ACKNOWLEDGES THAT BUT
FOR THESE DISCLAIMERS OF REPRESENTATIONS, WARRANTIES, AND CONDITIONS
AND LIMITATIONS ON LIABILITIES AND REMEDIES, CERTICOM WOULD NOT ISSUE
CERTIFICATES HEREUNDER OR ENTER INTO THIS AGREEMENT AND THAT THESE
PROVISIONS PROVIDE FOR A REASONABLE ALLOCATION OF RISK.
7.0 General
7.1.Notices. Any notices, required or permitted to be made or given to
either party pursuant to this Agreement shall be in writing and shall
be delivered to the address set forth on the first page, or to such
other address as the receiving party may have designated by written
notice given to the other party. Legal notices shall be sent to the
person listed as the Legal Contact. Technical notices shall be sent to
the name listed as the Technical Contact.
7.2.Export. Manufacturer must comply with all applicable export,
import, or other relevant laws of any applicable jurisdiction.
Determination of the applicable law is Manufacturer’s
responsibility. Obtaining any necessary export or import approval
necessary for the purposes hereunder is the sole responsibility of
Licensee.
7.3.Audit. Certicom or its duly authorized representatives shall be
permitted, upon reasonable notice, and subject to appropriate
non-disclosure terms, to inspect all records pertaining to the Digital
Certificates, including, without limitation, records related or
pertaining to the security, usage, and distribution of the Digital
Certificates. The inspections may be made notwithstanding termination
of this Agreement while any outstanding claim remains unsettled in the
view of either party.
7.4.Irreparable Harm. Manufacturer acknowledges and agrees that due to
the unique and sensitive nature to the use of the Digital Certificates
authorized hereunder, including any private keys therein, there can be
no adequate remedy at law for breach of Manufacturer's obligations
hereunder, that such breach or unauthorized use or release of the
Digital Certificates will cause material damage and result in
irreparable harm. Therefore, upon any such breach or any threat
thereof, Certicom shall be entitled to appropriate equitable relief in
addition to whatever remedies it might have at law.
7.5.Amendments. No amendment or modification hereof shall be valid or
binding upon the parties unless made in writing and signed by both
parties hereto.
7.6.Waiver. Any waiver by either party hereto of any breach of this
Agreement shall not constitute a waiver of any subsequent or other
breach.
7.7.Survival. Sections 1, 4.5, 6 and 7 shall survive any termination of
the Agreement.
7.8.Assignment. Manufacturer may not assign this Agreement without the
express, prior written approval of Certicom.
7.9.Entire Agreement. This Agreement embodies the entire understanding
of the parties with respect to the subject matter hereof and merges all
prior discussions between them, and neither of the parties shall be
bound by any conditions, definitions, warranties, understandings or
representations with respect to the subject matter hereof other than as
expressly provided herein.
7.10.Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not be in
any way affected or impaired thereby.
7.11.Governing Law. The laws in force in the Province of Ontario will
govern this Agreement, and any dispute resolution between the parties
relating to this Agreement or its construction will take place in
Toronto. The parties agree that the United Nations Convention on
Contracts for the International Sale of Goods does not apply to this
Agreement. The prevailing party (as determined by the finder of fact)
in any suit or other dispute resolution to enforce or interpret any
part of this Agreement is entitled to recover, as a costs of suit,
reasonable attorney’s fees as determined by the finder of
fact (including, but not limited to, costs, expenses and fees on
appeal).
7.12.Dispute Resolution. The parties shall attempt in good faith to
resolve any dispute relating to or arising from this Agreement. In the
event the parties are unable to resolve the dispute, then the dispute
shall be resolved by binding arbitration under the terms of this
Section. Such arbitration shall be conducted in Toronto, Ontario, in
accordance with the rules then in effect of the Arbitration &
Mediation Institute of Ontario by a single arbitrator appointed in
accordance with such rules. The award rendered by the arbitrator shall
be final and binding, and judgment may be entered upon it in any court
having jurisdiction thereof. Notwithstanding the foregoing, the parties
may apply to any court of competent jurisdiction for a temporary
restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration
agreement and without any abridgment of the powers of the arbitrator.
I have read and accept the terms of the agreement