NIAGARA CLOUD Terms and Conditions of Use

Please read these terms and conditions carefully before using the services available through the Niagara Framework cloud services website. Use of Niagara Cloud binds the user and the Organization of which they are an employee, agent or otherwise acting on behalf of to these terms and conditions, which concern the user’s and Organization’s legal rights and obligations. Use of the Niagara Cloud is also subject to the website terms of use that apply to the Niagara Community website.

If you are accepting these terms and conditions on behalf of, or for the benefit of, another party, then your acceptance of these terms and conditions and/or your use of the Niagara Cloud on behalf of that party constitutes your representation that you are authorized by that party to accept these terms and conditions for that party. If you do not agree to these terms and conditions for yourself, or if you are not authorized to do so for another party, you are not authorized to use the Niagara Cloud, and your continued use of the Niagara Cloud constitutes a breach of contract and/or violation of law that could subject you to civil or criminal penalties.

In addition, any use of the Niagara Cloud constitutes your representation that you are at least 18 years of age. If you are not at least 18 years of age, you may not use the Niagara Cloud and any use of the Niagara Cloud by you constitutes a violation of these terms and conditions and, if you are not the owner, a violation of the rights of the owner.

Click on the “I AGREE” button to acknowledge that you have read and agree to these Niagara Cloud terms and conditions and conditions of use.

Last updated: 10th November 2018

1. NIAGARA CLOUD AND OTHER DEFINITIONS.

1.1     Niagara Cloud. The Niagara Cloud is a service provided by Tridium that uses Tridium’s proprietary software to allow Owners of Tridium’s Niagara Framework products and their Authorized Users to access data from their Niagara Framework products, including without limitation license information, backup data collected by or through such products and to perform other functions made available through the Niagara Cloud user interface.

1.2    Other Definitions:

1.2.1    “Administrator” means, with respect to each Organization, an Authorized User designated as an Administrator in the Organization Record of that Organization.

1.2.2    “Affiliate” shall mean with respect to any party all of the entities that control, are controlled by or are under common control with such party. For purposes of this definition, “control” shall mean the possession, directly or indirectly, of a majority of the voting power of such entity (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

1.2.3    “Asset Manager” means a tool that provides (i) automated software maintenance management for Niagara Framework software products, including notices of expiration of the term for which Niagara Framework software maintenance has been paid and other notices related to maintenance of such products; and (ii) a means of authorizing individuals and organizations to access Niagara Cloud services for designated Niagara devices.

1.2.4    “Authorized User” means an individual person that (a) is an Organization or (b) has been identified as an Authorized User in an Organization Record.

1.2.5    “Data” means all data of any kind delivered by any User to the Niagara Cloud, including without limitation Owner Data and Derived Data. “Owner Data,” with respect to each Owner, means all information gathered from Device(s) identified in Device Record(s) as belonging to that Owner. “Derived Data” means all aggregated Owner Data that is anonymized so that it is not identified with a particular Owner or other User, and all analysis or other information derived from the same.

1.2.6    “Data Processing Agreement” means the Data Processing Agreement attached to these Terms and Conditions captioned “Data Privacy Exhibit.”

1.2.7    “Device” means a JACE controller (“JACE”), or other controller, computer or other hardware item that operates on Niagara Framework software.

1.2.8    “Device Record” means an electronic file created in the Niagara Cloud for a Device that includes the unique identifier of the Device, Niagara Framework license information for the Device, the identification of the service provider that installed the Device, and all Owner Data gathered from the Device.

1.2.9    “Organization” means an individual person or a legal entity that is an Owner or a service provider for an Owner.

1.2.10    “Owner” means the owner of the Device entered into a Device Record.

1.2.11    “Organization Record” means the electronic file created in the Niagara Cloud for each Organization and all Authorized Users of the Organization, including at least one Administrator.

1.2.12    “Tridium” means Tridium, Inc., a Delaware corporation.

1.2.13    “User” means an Owner, Organization or Authorized User.

2. CREATION OF RECORDS; DESIGNATION OF AUTHORIZED USERS.

2.1     Device Record. A Device Record may be set up by any Organization that has an active Organization Record. Creation of a Device Record by an Administrator of the Organization constitutes the representation that such Organization is authorized by the Owner of the Device to create the Device record and that the information provided in the Device Record is accurate. Breach of such representation shall be deemed a material breach of these Terms and Condition.

2.2     Organization Record. An Organization Record may be set up by any individual authorized to do so. Creation of an Organization Record constitutes the representation of the individual creating the record that such individual is authorized by the Organization to create the Organization Record and that the information provided by such individual is accurate. Breach of such representation shall be deemed a material breach of these Terms and Conditions.

2.3     2.3 Authorization of, and removal of, Authorized Users. Each Organization must designate one or more individuals as an Administrator of the Organization. The creator of an Organization Record must designate at least one individual as an Administrator of an Organization that is a service provider for an Owner. An Administrator may designate individuals as Authorized Users on behalf of the Organization for which it is an Administrator. No other individual may do so without Tridium’s permission. An Administrator of an Organization can remove the registration of any Authorized User for the Administrator’s Organization. An Owner can remove the registration of any Authorized User for any Organization, and can remove any Organization Record.

2.4     Requirements To Be User. In order to be eligible to be a User, a User must:

a. if an individual person, be 18 years old or older; and

b. if an individual, not be a citizen of a country with which Tridium is prohibited from doing business under export laws or regulations of the United States of America, and

c. not barred from dealing with United States persons or entities under any Export Law” No Administrator may designate as an Authorized User any individual who is not eligible to be an Authorized User. Each User shall be deemed to warrant, upon each use of the Niagara Cloud, that the User satisfies the above eligibility requirements. Use of the Niagara Cloud if by a User that does not satisfy those requirements constitutes both a breach of these Terms and Conditions and an unauthorized use of the Niagara Cloud for which the User may be legally liable. Tridium may request verification of any User’s eligibility. If a User fails to provide verification acceptable to Tridium, makes any unauthorized use of the Niagara Cloud, or becomes ineligible to be a User Tridium may, among other remedies, suspend or terminate User’s access to the Niagara Cloud.

3. ACCESS TO NIAGARA CLOUD; LICENSE TO USE.

3.1     Scope Of Rights To Use. Subject to these Terms and Conditions, Tridium grants Users a limited, non-exclusive, non-transferable license without right to sublicense to (a) access Organization Records of the Organization for which they are Authorized Users and Device Records that identify such Organizations as Organizations authorized to have access, and (b) in connection with such records, use all features and operations made available through Niagara Cloud, as Niagara Cloud may be updated from time to time. If any feature or function is offered under terms and conditions that are required to be accepted prior to using the same, such terms and conditions, once accepted by a User, shall be deemed part of these Terms and Conditions for that User. To the extent, if any, that Niagara Cloud permits granting of limited access to such any information, function or feature, each Authorized User’s access shall be limited as designated by an Administrator in the manner permitted by Niagara Cloud. Tridium reserves the right to modify the Niagara Cloud at any time.

3.2     Reservation of Tridium’s Rights. The content posted by Tridium on the Niagara Cloud is the sole and exclusive property of Tridium, or its licensors, and is protected by copyright, trademark and other laws of the United States and other countries. No User may, without prior written permission of Tridium, reproduce any Tridium content from the Niagara Cloud in any form or by any means, or modify, distribute publish transmit or create derivative works from any such information. No licenses or rights are granted to any User by implication or otherwise under any intellectual property rights owned of Tridium or its licensors except as expressly set forth in Section 3.1 above. Tridium reserves all rights in the Niagara Cloud not expressly granted to you by these Terms and Conditions. Specifically, but without limitation, Users may not:

a. resell, license, sublicense, lease, transfer, publicly display, publicly perform, transmit, broadcast or otherwise make available any part of the Niagara Cloud to any party, or incorporate any part of the Niagara Cloud service into any product or service that a User makes available to any third-party customer;
b. use, copy, adapt, modify, prepare derivative works based upon, exploit all or any element of the Niagara Cloud service as expressly permitted in these Terms and Condition; reverse engineer, decompile, disassemble, or otherwise work around or circumvent any security protections, technical limitations on use, or any other element of the Niagara Cloud.

3.3     Data Security. Owner acknowledges that no method of transmission over the internet, and no method of storing electronic information, can be 100% secure. Tridium uses reasonable means to protect information provided by you and information related to your transactions related to the Niagara Cloud, but it is not possible to ensure the security of information provided over the internet or of electronically stored information. By using the Niagara Cloud Owner and each User accepts the risk that such data, and data generated in the course of use of the Niagara Cloud, may not be completely secure.

3.4     Tridium’s Right to Grant Access to Owner. No Organization may, directly or indirectly, interfere with Owner’s access to Device Records of Owner or to any Owner Data. If for any reason Owner is unable to access any Device Record for a Device that it owns, Tridium reserves the right to grant access to the Device Record(s) to Owner upon Tridium’s determination that the party claiming to be the Owner is the actual Owner in a manner deemed reasonable by Tridium. Tridium shall have no liability to Owner or any other User for granting such access.

3.5     Interruptions. Use of the Niagara Cloud may be interrupted from time to time for maintenance, upgrade or technical reasons, and Tridium shall have no liability to any User for any such interruption.

4. FEE AND PAYMENT TERMS.

The Asset Manager shall be available to each party with an active Organization Record without payment of a fee. The fee for use of other functions of the Niagara Cloud shall be the fee on the price list as of the date the fee is paid.

5. OBLIGATIONS AND RESPONSIBILITIES OF ORGANIZATIONS AND AUTHORIZED USERS.

5.1     Control of Access. Each User acknowledges that Tridium is not responsible for control of access to any Device Record or Organization Record by anyone other than Tridium. Each User further acknowledges that an individual who has administrator or operator rights to any JACE or other Device may, without becoming an Authorized User, cause data from the JACE or other Device to be transmitted to the Niagara Cloud, or to otherwise interact with the Niagara Cloud. Tridium shall have no liability or obligation of any kind to an Organization, any Authorized User or any other party for any action of any such individual or any User. Each Organization is responsible for deactivating the Administrator status and/or passwords of any Authorized User whom it wishes to cease to be an Administrator or an Authorized User and for controlling administrator and operator rights to Devices it owns or for which it is a service provider.

5.2     Authorized User’s Obligations. No Authorized User may access any information or take any action other than as authorized by the Organization for which it is an Authorized User. Each Authorized User is responsible for all actions taken by means of its password and by any other means of access to the Niagara Cloud authorized or permitted by it. Each User shall indemnify and hold harmless Tridium, its officers, directors, employees and agents against all losses, liabilities, costs, claims, damages or other causes of any nature or kind whatsoever (including reasonable attorney's fees) arising from or related to (i) any false information supplied by the User, and (ii) any use of the Niagara Cloud in violation of these Terms of Use, (iii) any use of Data in the manner permitted by this Agreement or (iii) any breach of these Terms of Use or the Terms of Use applicable to the Niagara Community Website.

5.3     Tridium’s Rights to Terminate or Suspend Authorized Users. Tridium has no obligation to monitor use of any Record or to enforce compliance with these Terms of Use, but it has the right to do so and to enforce compliance with these Terms of Use. Tridium may, at any time withdraw any grant of Administrator access or and/or otherwise eliminate, suspend or restrict the access of any Organization, any Administrator or any Authorized User to the Niagara Cloud if Tridium has reason to believe that any such Owner or Authorized User has committed any breach of any of these Terms and Conditions, but it shall have no obligation to do so. Tridium shall have no liability for eliminating, suspending or restricting the access of Owner or any Authorized User.

6. RIGHTS IN DATA.

6.1     Rights to Use Data All Owner Data in any Device Record is the sole and exclusive property of the Owner. Tridium will not provide access to any Owner Data to anyone other than Owner or its Authorized Users except to the extent, if any, required by law. Tridium may, however, (i) copy and use Data, for the purposes set forth in the Privacy Policy posted on the Niagara Community website, and/or disclose the Data to its Affiliates, (ii) disclose Data to such Affiliates and to its, and their, contractors and agents solely for the purpose of assisting Tridium in connection with its permitted uses of the Data, and may use the Owner Data to develop Derived Data. All such disclosures shall be made subject to agreements under which the Affiliates, contractors and agents shall be required not to use or disclose the Data except as directed by Tridium. Owner, and each other User, hereby grants to Tridium a non-exclusive, worldwide, perpetual, irrevocable, fully-transferrable, full-sublicensable, and royalty-free right and license to use, possess, copy, manipulate, modify create derivative works based on the Data for the purposes set forth above. Each User acknowledges that Tridium is the sole and exclusive owner of all Derived Data and may use the same without restriction and for any purpose. Owner, and each other User, hereby transfer and assign to Tridium all rights and title that any of them may have in or to any Derived Data.

6.2     Privacy Data about Organizations and/or your or their employees, agents or Affiliates or you that is recognized under applicable law as “personal data” or equivalent terms (collectively “Personal Data”) may be processed in relation to these Terms and Conditions. To the extent the laws of a jurisdiction recognize the roles of “data controller” and “data processor” as applied to Personal Data then, as between you and Tridium, each Organization acts as data controller and Tridium act as data processor and shall process Personal Data solely on behalf of and in accordance with the documented instructions of the Organization, these Terms and Condition and applicable privacy laws and only to the extent, and for so long as necessary, to provide, protect, improve or develop the Services and perform rights and obligations under these Terms and Conditions. Tridium and each Organization shall each comply with their obligations under applicable privacy laws including in their respective roles as controller and processor of Personal Data. Each Organization authorizes Tridium to share Personal Data with sub-processors (including Affiliates and service providers) located in any jurisdiction in connection with these Terms and Conditions, provided it uses legally enforceable transfer mechanisms and contractually require sub-processors to abide by terms no less restrictive that those in these Terms and Conditions with regards to processing of Personal Data. Tridium shall have no liability for any losses, costs, expenses or liabilities arising from or in connection with processing of Personal Data in compliance with these Terms and Conditions or otherwise in compliance with an Organizations written instructions. Tridium shall refer all data subject requests to exercise rights under applicable privacy laws made by a data subject that is an Authorized User of an Organization to that Organization and provide reasonable assistance to enable the Organization to: (i) comply with such requests; (ii) enable Personal Data security; (iii) respond to complaints or inquiries and to conduct any privacy impact assessments; and (iii) verify compliance with our obligations in this clause (including allowing for and participating in Personal Data audits), provided you reimburse all reasonably incurred costs. Upon termination Tridium shall delete or anonymize all Personal Data, except that it may retain Personal Data if required or permitted by applicable law for compliance, audit or security purposes. No Organization may process “Personal Data” (or equivalents) of Tridium or its Affiliates that the Organization receives solely for the purposes of performing these Terms and Conditions and shall delete or anonymize all such personal data upon termination. If Tridium processes Personal Data relating to data subjects in the European Economic Area (“EEA”), Switzerland or Philippines: (i) if Tridium, believes any instruction from an Organization will violate applicable privacy laws, or if applicable law requires Tridium to process Personal Data relating to data subjects in the EEA in a way that is not in line with an Organization's documented instructions Tridium shall notify the Organization in writing, unless the law prohibits such notification on important grounds of public interest; (ii) Tridium shall upon request make available the identity of sub-processors and notify intended additions or replacements and the Organization shall have 5 business days to object. If the Organization objects and the parties do not resolve within 1 month, Tridium may terminate without penalty on written notice; and (iii) Tridiumshall ensure personnel processing Personal Data of EEA data subjects have committed to confidentiality in relation to such processing. Where transfers of Personal Data require: (i) each Organization authorizes Tridium and its Affiliates to act as agent for the limited purpose of binding the Organization as principal, in the capacity of “data exporter”, to an inter group or service provider data transfer agreement of Tridium or its corporate parent, Honeywell International, Inc., comprising the Standard Contractual Clauses for the transfer of personal data to processors established in third countries adopted by the European Commission (“SCC”); and (ii) the parties agree that the SCCs (located at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries_en or updated more recent website) shall be deemed to have been signed by the Organization and/or its Affiliates, in the capacity of “data exporter”, and by us and/or our Affiliates, in the capacity of “data importer” and the information required to be provided in the SCCs appendices shall be set out in these Terms and Conditions or separately agreed in writing.

6.3     Security Tridium will use commercially reasonable and customary administrative, physical and technical safeguards to protect Personal Data and Owner Data and follow industry-standard security practices; and (ii) following a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration or unauthorized access, disclosure or use of Tridium and/or of your Personal Data or Owner Data Tridium will notify each Organization without undue delay and as relevant information becomes available to assist each Organization in meeting its potential reporting or notice obligations under applicable law and each Organization agrees to work with Tridium us in good faith to develop any related public statements or required notices. Each Organization will implement commercially reasonable and customary administrative, physical and technical safeguards to protect Tridium and follow industry-standard security practices. Each Organization is solely responsible for costs incurred due to unauthorized use or access through its or your or Authorized Users account credentials or systems.

7. LIMITATION OF CLAIMS, WARRANTY AND LIABILITY.

7.1     Notice of Claims. Tridium does not insure any User against, and is not in any way liable for, any loss or risk of any kind resulting from use of the Niagara Cloud. If any User has a claim against Tridium, it must notify Tridium in writing of the claim at the address for notice given in Section 10 below within thirty (30) days of the date it first became aware of such claim. Any claim of which Tridium is not notified in the manner, or within the time, set forth above shall be deemed waived.

7.2     No Warranty. TRIDIUM PROVIDES ACCESS TO AND USE OF THE NIAGARA CLOUD “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND. TRIDIUM SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRIDIUM, OR ITS AGENTS OR EMPLOYEES SHALL CREATE OR FORM THE BASIS OF ANY WARRANTY OF ANY KIND.

7.3     Limitation on Liability. NEITHER TRIDIUM NOR ANY OF ITS AFFILIATES, LICENSORS, OFFICERS, AGENTS, EMPLOYEES OR REPRESENTATIVES SHALL BE LIABLE TO OWNER OR ANY AUTHORIZED USER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR PENALTIES (INCLUDING DAMAGES FOR LOST PROFITS, LOST BUSINESS, LOST DATA, BUSINESS INTERRUPTION, AND THE LIKE), HOWEVER THEY ARISE, INCLUDING BUT NOT LIMITED TO, THE USE BY OWNER OF NIAGARA CLOUD, WHETHER FOR BREACH OF CONTRACT OR IN TORT, EVEN IF TRIDIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT SHALL TRIDIUM’S CUMULATIVE MONETARY LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE DATA EXCEED THE AMOUNTS PAID TO IT BY OWNER PURSUANT TO THIS AGREEMENT.

7.4     Limitation of Damages. IN NO EVENT SHALL TRIDIUM’S CUMULATIVE MONETARY LIABILITY TO ANY ORGANIZATION AND ALL OF ITS AUTHORIZED USERS IN CONNECTION WITH OR ARISING OUT OF USE OF THE NIAGARA CLOUD, INCLUDING WITHOUT LIMITATION MATTERS ARISING UNDER THE DATA PROCESSING AGREEMENT, EXCEED THE AMOUNTS, IF ANY, PAID TO TRIDIUM BY OR ON BEHALF OF OWNER EXPRESSLY FOR USE OF THE NIAGARA CLOUD FEATURE(S) FROM WHICH THE LIABILITY AROSE.

8. TERM and TERMINATION.

8.1     Term. Each Organization, and its Authorized Users, shall have access to the Niagara Cloud features for which the Organization has paid the fee, if any, that is due for use of that feature unless and until such right is suspended or terminated due to the fault of a User as provided in this Section 8.

8.2     Tridium’s Right to Terminate Access; Organization’s Right to Deactivate. Tridium may terminate the access of an Organization, and/or all or any Authorized Users, to all or any part of the Niagara Cloud on the (10) days advance written notice to the Organization (i) in case of any breach of any of these Terms and Conditions if the breach is not cured within that time, (ii) if any amount due has not been timely paid. Furthermore, Tridium may terminate such access immediately upon notice in case of a breach of the Terms or Conditions that cannot be cured. Any Organization may deactivate its Organization Record and/or Device Records for any or all of its Devices at any time.

8.3     Termination of Features. Tridium may terminate all or any feature or function of the Niagara Cloud service upon ninety (90) days’ notice. Each User acknowledges that Tridium has no obligation to continue all or any part of the Niagara Cloud service.

8.4     Post-Termination Access To Data. Upon termination of access or termination of any feature or function of the Niagara Cloud by Tridium, Owner Data for which access has been terminated, and/or related to f a feature or function that is no longer available will be available for retrieval by Owner for a period of ninety (90) days after the date of termination. After that date, Tridium shall have the right, but not the obligation, to retain Owner’s Data, nor shall it have any other obligation to Owner or any Authorized User.

9. COMPLIANCE WITH LAWS.

User will comply with all laws applicable to its use of the Niagara Cloud including any laws applicable to it personally or specifically to its industry. User acknowledges, that use of the Niagara Cloud services are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. User agrees to fully comply with all applicable export and import laws and regulations. User may not access the Niagara Cloud from a country to which the Niagara Cloud service may not be provided under the export laws and regulations of the United States of America.

10. NOTICES.

Owner and each other User agree to receive notices from Tridium (a) electronically by email to the Administrator specified in Organization Record for User’s Organization, and/or to the User (b) by mail or courier to the address for the Organization with which User is associated in the Owner Record. Notices to Tridium must be sent to Tridium by mail or e-mail to:

Director of Customer Experience
Tridium, Inc.,
3951 Westerre Parkway
Richmond, VA 23233-1313,
e-mail:_ support@tridium.com

or such other address as Tridium may indicate by written notice from Tridium in accordance with this Section 10. Notices are effective at the close of the first business day after sending if delivered by e-mail, and on the date indicated on the return receipt or other record of delivery if sent by mail or courier. Supplier is responsible for ensuring that the account administrator email address that you specify in the Owner’s Record.

11. UPDATES TO TERMS AND CONDITIONS.

These Terms and Conditions, may be updated by Tridium at any time upon notice to Owner and each other User. Use of Niagara Cloud by any Authorized User after sending of notice shall be deemed consent to the updated Terms and Conditions by such Authorized User and the Owner or Organization of which it is an agent or employee.

12. FORCE MAJEURE.

Neither Tridium nor any User will be liable for any failure in performance due to causes beyond its reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services). This section will not, however, apply to your payment obligations under this agreement.

13. GENERAL.

No User may assign any of its rights under these Terms and Conditions. Each User acknowledges that any breach of its obligations hereunder may cause Tridium irreparable injury for which it has no adequate remedy at law, and therefore that Tridium will be entitled to seek and obtain equitable relief, including preliminary injunctions and temporary restraining orders, to prevent any breach of these Terms and Conditions. The headings in these Terms and Conditions are for the convenience of the reader and shall not limit or alter the meaning of any terms. A waiver of any breach of default of these Terms and Conditions shall not create a waiver of the term or of any subsequent breach of default. The validity of these Terms and Conditions and the rights, obligations and relations of Tridium and all Users shall be construed and determined under and in accordance with the substantive laws of the Commonwealth of Virginia with respect to claims governed by state law and the laws of the United States with respect to claims arising under the laws of the United States, without regard to conflicts of laws principles and excluding the Convention on Contracts for the International Sale of Goods, and excluding the Uniform Computer Information Transactions Act of Virginia. Any action arising from or relating to this Agreement or the conduct of the Parties pursuant hereto shall be commenced and heard solely within a federal or state court of competent jurisdiction found within the boundaries of the United States District Court for the Eastern District of Virginia, Richmond Division, and Tridium and Reseller each consent to personal jurisdiction and venue in any such court. Any term or provision of this Agreement, or portion thereof, which by its nature survives the termination or expiration of this Agreement, shall so survive Should any term or provision of these Terms and Conditions Agreement be finally determined by a court of competent jurisdiction to be void, invalid, unenforceable or contrary to law or equity, the offending term shall be modified and limited (or if strictly necessary, deleted) only to the extent required to conform to the requirements of law and the remainder of these Terms and Conditions shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law. There are no third-party beneficiaries of these Terms and Conditions. These Terms and Conditions the Terms of Use of the Niagara Community Website comprise the entire agreement between Tridium and Users relating to its subject matter. Such Terms and Conditions supersede all prior agreements and understandings, written or oral, express or implied except the terms of any confidentiality agreement between the parties shall not be superseded.