Johnson Controls - Hardware Sale Supplemental Terms and Conditions

These Hardware Sale Supplemental Terms and Conditions (the “Hardware Terms”) supplement and form part of the Johnson Controls Master SaaS Agreement, Service Agreement or other agreement entered into between the applicable Johnson Controls entity (“JCI”) and the applicable customer entity (“Customer”) (such agreement, the “Agreement”). In addition to the Services supplied to Customer under the Agreement and subject to these Hardware Terms, JCI desires to sell to Customer the hardware and related firmware (the “Hardware”), as further described in an executed Order. In the case of a conflict between these Hardware Terms and the terms of the Agreement, the terms of this Exhibit shall control but only with respect to the Hardware. Capitalized terms used herein but not defined shall have the definitions given to such terms in the Agreement.

1. Delivery. Unless otherwise stated in an Order, Incoterms 2020 published by the International Chamber of Commerce shall govern these Hardware Terms, provided that in the event of any conflict between these Hardware Terms and Incoterms 2020, these Hardware Terms shall govern. Delivery of Hardware to the carrier will constitute delivery to Customer, and regardless of shipping terms or freight payment, Customer shall bear all risk of loss or damage in transit. Title of the Hardware shall transfer to Customer at delivery. Claims for shortages or other errors in delivery or defects in Hardware must be made in writing to JCI within ten (10) calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Customer. All delivery dates are approximate.

2. Security Interest; No Returns. If the Hardware is sold on credit, Customer acknowledges that JCI retains a security interest in the Hardware to the extent permissible under applicable laws. To secure Customer’s obligations to JCI under an Order, Customer grants to JCI a security interest in all the Hardware sold, whether now owned or hereafter acquired, and all proceeds of such Hardware. JCI may file any financing statements and send any notices necessary or appropriate to perfect or protect such security interest, and Customer will perform all necessary acts required under applicable laws to create such security interest. Except as otherwise agreed in the Order, no Hardware will be accepted for return.

3. Warranty.


3.1. Hardware Warranty. Subject to Section 3.2, and unless otherwise specified in an Order, JCI warrants that the Hardware shall be free from defects in materials and workmanship for a period of one (1) year from delivery. If, within such warranty period, Hardware fails to conform to this limited warranty, JCI shall, in its sole discretion, either (A) repair or replace the affected Hardware free of charge; or (B) in JCI’s sole and exclusive discretion, refund the price paid by Customer for such Hardware. Such repair, replacement, or refund shall be JCI’s sole obligation and Customer’s exclusive remedy for any deficiency in Hardware furnished under the Agreement and shall be conditioned upon Customer’s return of such Hardware to JCI or, in JCI’s sole discretion, inspection in the field by a JCI-authorized representative. Any parts of Hardware repaired or replaced under this warranty are warranted only for the balance of the warranty period on the original part that was repaired or replaced.

3.2. Warranty Exclusions. No warranty is provided for (a) failures or inoperability caused by hardware, products, services or software not supplied by Supplier; (b) any acts or omissions of Customer, Customer’s representatives or any third party; (c) normal wear and tear; (d) any failure by Customer or any third party to maintain proper physical operating environment; (e) use of the Hardware in excess of granted rights; (f) misuse or abuse; (g) harmful environments; or (h) any Force Majeure Event. Supplier shall not be required to perform under any warranty where performing would violate applicable law. Any descriptions of hardware in JCI’s sales efforts shall not be construed as an express warranty.

3.3. Warranty Disclaimers. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. JCI EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR ANY PARTICULAR PURPOSE. JCI DISCLAIMS ANY WARRANTY THAT THE FIRMWARE WILL BE ERROR-FREE OR UNINTERRUPTED. CUSTOMER IS SOLELY RESPONSIBLE FOR REMOVING ANY AND ALL CUSTOMER DATA FROM DEFECTIVE HARDWARE.


4. Firmware Terms. The software that is embedded or encoded in the Hardware and any updates thereto (the “Firmware”) is licensed, not sold. Subject to this Agreement and payment of applicable fees, JCI grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide license to use the Firmware solely in object code, solely as embedded in and for the operation of the applicable Hardware, and solely for Customer’s internal business purposes in connection with the related JCI software or software services. Except to the extent expressly permitted by applicable law, Customer shall not (and shall not permit any third party to) copy (other than a reasonable backup), modify, translate, reverse engineer, decompile, disassemble, or work around technical limitations of the Firmware; separate the Firmware from the Hardware; use the Firmware to operate non-JCI hardware; or rent, lease, or host the Firmware for third parties. JCI or its licensors retain all right, title and interest in and to the Firmware and all copies. JCI may provide updates, patches, or fixes for the Firmware; any such update is deemed Firmware and governed by this Section.

5. Intellectual Property. All intellectual property rights (including, without limitation, patents, trademarks, registered designs, and any rights to apply for the same, copyright, design rights, database rights, rights in and to confidential information and know-how), and any rights analogous to the same anywhere in the world and existing at any time in Hardware or Software or arising out of or relating to the design or manufacture of Hardware or the provision of the Services shall belong to and remain vested in JCI. Nothing in these Hardware Terms grants to Customer any right, title or interest in or to JCI’s intellectual property.

6. Limitation of Liability. The liability limitations and damage exclusions set forth in the Agreement will apply to offerings provided under the Agreement other than the Hardware. In connection with or arising out of sale of Hardware and items governed by these Hardware Terms, the following terms will apply:

6.1. Overall Damage Cap. JCI’S LIABILITY UNDER THESE HARDWARE TERMS AND ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OR SALE OF HARDWARE, REGARDLESS OF THE FORM OF ACTION AND WHETHER SUCH LIABILITY IS ASSERTED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHERWISE, SHALL IN NO EVENT EXCEED: (A) FOR ANY SINGLE CLAIM OR SERIES OF RELATED CLAIMS, THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO JCI FOR THE HARDWARE GIVING RISE TO THE CLAIM(S) IN THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE AND (B) IN THE AGGREGATE FOR ALL CLAIMS, THE TOTAL OF ALL HARDWARE FEES PAID OR PAYABLE BY CUSTOMER TO JCI UNDER THE ORDER FORM FOR THE APPLICABLE HARDWARE.

6.2. No Consequential or Punitive Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE HARDWARE TERMS, JCI SHALL NOT BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, OR OTHERWISE, TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING UNDER OR IN CONNECTION WITH THE PROVISION OR SALE OF HARDWARE, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF REVENUE, LOSS OF CUSTOMER OPPORTUNITIES, LOSS OF ANTICIPATED SAVINGS, DATA LOSS OR OTHER LOSSES ARISING FROM VIRUSES, RANSOMWARE, CYBER ATTACKS OR FAILURES OR INTERRUPTIONS TO NETWORK SYSTEMS, LOSS OF BUSINESS OR GOODWILL, BUSINESS INTERRUPTION, DOWN-TIME, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, OR FOR ANY OTHER TYPES OF ECONOMIC LOSS, OR FOR CLAIMS OF CUSTOMER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES, COSTS OR LOSSES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND/OR (B) WHETHER OR NOT JCI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.