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Software Terms and Conditions Acceptance
NOTICE – READ THIS CAREFULLY: THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND LICENSOR. BY INSTALLING THE SOFTWARE, YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE (“LICENSE”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE. 1. Definitions Unless otherwise agreed to by Licensor, the following terms shall mean: “Documentation” means all material, including all printed material and on-line or electronic documentation (excluding training materials), referencing the Software and Third-Party Software provided hereunder. “Software” means Licensor’s proprietary computer software and software security devices provided by Licensor under this License. “Third-Party Software” means any proprietary computer software owned by a third party that Licensor may provide to you hereunder. 2. License Grant 2.1 Subject to the terms of this License, Licensor hereby grants to you a non-transferrable and nonexclusive license to use the Software and Documentation, including upgraded, modified or enhanced versions provided by Licensor and to use the Third-Party Software, all for your internal business purposes only 2.2 You have no right to (i) lease, rent, transfer, distribute, sublicense, timeshare or allow third parties to access the Software, Documentation or Third-Party Software, nor assign any rights hereunder to a third party without Licensor’s prior, written agreement; (ii) disassemble, decompile, reverse engineer or otherwise attempt to reconstruct or discover the source code of the Software or Third-Party Software; (iii) pledge the Software or Third-Party Software as collateral or otherwise or encumber such Software or Third-Party Software with any lien or security interest; or (iv) remove any product identification, copyright, trademark or other notice from the Software, Documentation or Third-Party Software. If you believe that you are entitled to reverse engineer the Software as a matter of local law (e.g., the Council Directive of May 14, 1991, of the Council of the European Communities, as amended), you agree that you shall first request technical information from Licensor. You shall use any technical information delivered by Licensor only for purposes of ensuring “interoperability” and compatibility and shall treat such technical information as Proprietary Information (defined below). Any reverse engineering of the Software shall void any warranties or indemnification obligations of Licensor and shall automatically release Licensor from any obligation to provide support services under this or any separate agreement. 2.3 Certain software Licensor provides to you may contain Third-Party Software, including but not limited to “open source” software. Use of the Third-Party Software and its source code may be governed by separate copyright notices and license provisions, which may be found or identified in the Documentation or on the media delivered with the Software and which are incorporated by reference into this License. You shall not modify or combine the Software and/or any Third-Party Software in any manner that could cause, or could be interpreted or asserted to cause, the Software or any modifications thereto to become subject to the terms of any license applicable to Third Party Software. 2.4 Unless otherwise agreed to by Licensor or specified on your accepted Purchase Order, you shall only have the right to install and use a single copy of the Software and Third-Party Software on a single computer workstation for use by a single user, which may be referred to as a “CPU License.” If “Local Area Network License” rights were purchased, you are authorized to install and use by the designated maximum number of concurrent users on any number of I/O access stations for a designated Local Area Network (LAN). LAN is defined as a hard-wired computer network system which inter-connects computers within a building, facility or site. A facility or site is defined as a production factory or plant producing a product or multiple products at a single location. Concurrent users are defined as your employees logged onto the software application at the same time regardless of activity. Use over a Wide Area Network (WAN) is strictly prohibited, except as may be provided by separate agreement resulting from special license negotiations. WAN is defined as any computer network system that inter-connects one or more computers within a building, facility or site to one or more computers residing outside the same building, facility or site. 2.5 You may make one (1) copy of the Software, Documentation and Third-Party Software for backup purposes only. You must reproduce and include all proprietary rights and copyright notices on any backup copies. Except as authorized under this License, no copies of the Software, Documentation or Third-Party Software may be made by you or any third party; provided, however, you may print online Software documentation for its own internal use, provided the maximum number of copies may not exceed the number of users licensed hereunder. 3. Support Services; Upgrades This License does not obligate Licensor to provide maintenance and support on any Software or Third-Party Software licensed hereunder. Support services are available under separate agreement. If the Software is an upgrade of a previous version (provided such upgrade was obtained under a separate support services agreement with Licensor or a Licensor authorized distributor), you may use the upgraded Software only in accordance with this License. Licensor will use commercially reasonable attempts to answer your technical support requests concerning the Software during Licensor’s normal business hours; however, this service is offered as a convenience to you, and Licensor may not be able to resolve every support request. For technical support requests, you may contact Licensor, as indicated in the Documentation or Help section of the Software. Licensor reserves the right to charge for customer support services, provided you receives advance notice of all applicable charges. IN NO EVENT WILL GE OR ITS SUPPLIERS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONTINGENT, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES OF ANY KIND RESULTING FROM THE DELIVERY OR NON-DELIVERY OF TECHNICAL SUPPORT SERVICES OF ANY KIND. THIS INCLUDES, BUT IS NOT LIMITED TO, PERSONAL INJURY, PROPERTY DAMAGE, DAMAGE TO ANY PARTY'S COMPUTER OR OTHER EQUIPMENT AND THE LOSS OF ANY DATA. 4. Verification During the term of this License and for 3 years thereafter, Licensor may upon reasonable notice require that an independent audit of the use of the Software and Third-Party Software be conducted during your normal business hours. Upon such notice, you shall provide Licensor’s independent auditor site access and the right to inspect relevant portions of your computer system on which the Software and Third-Party Software resides. 5. Term and Termination 5.1 The Software, Documentation and Third-Party Software shall be considered accepted by you upon receipt. 5.2 This License is effective until terminated. Licensor may terminate this License immediately if you fail to comply with any of the terms and conditions herein. Upon termination, you shall (a) cease using the Software, Documentation and Third-Party Software and (b) certify to Licensor within one (1) month of termination that you have destroyed or returned to Licensor the Software, Documentation and Third-Party Software, and all copies thereof. 6. Ownership 6.1 All Software, Documentation and Third-Party Software are licensed and not sold. You agree that Licensor and its suppliers own all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark and other proprietary rights in and to the Software, Documentation and Third-Party Software, including any Derivative Works thereof, and any corrections, bug fixes and updates to such Software, Documentation, Third-Party Software or Derivative Works. For purposes hereof, “Derivative Works” shall mean (i) any work that is based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, extension or any other form in which such pre-existing works may be recast, transformed or adapted, and that, if prepared without the authorization of the owner of the copyright to such pre-existing works would constitute a copyright infringement and (ii) any compilation that incorporates such a pre-existing work. You shall have only a “right to use” license to any Derivative Works in accordance with the terms of this License. 6.2 For the purposes of this Article, the term “Licensor” shall mean Licensor, its affiliates and their successors or assigns. 7. Limited Warranties 7.1 Licensor warrants, for your benefit alone, that under normal use the media in which the Software is embedded shall be free from defects in material and workmanship, for a period of one (1) year from the date of delivery of the initial Software (“Warranty Period”). 7.2 Licensor warrants, for your benefit alone, that during the Warranty Period, the Software will perform substantially in accordance with its Documentation. If, during the Warranty Period, an Error occurs (where “Error” is defined as a problem caused by an incorrect operation of the unmodified computer code in the Software or an incorrect statement or diagram in the Documentation that produces incorrect results), Licensor will use commercially reasonable efforts to correct such Error, provided you furnish Licensor with the following: (a) written notice of the warranty claim, including a description of the failure to perform in accordance with the Documentation and a specific description of the operating conditions (including the specific software/hardware configuration) under which the failure occurred and (b) to the extent feasible, a representative sample of inputs for repeating and analysing the failure. If Licensor is unable, after commercially reasonable efforts, to correct the Error, your sole remedy shall be termination of this License and a refund of the license fees allocable to the specific nonconforming Software that have been paid by you to Licensor hereunder. 7.3 This Article sets forth the exclusive remedies for all claims based on failure of or defect in the Software and Documentation, whether the failure or defect arises before or during the Warranty Period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence) or civil liability, strict liability or otherwise. The warranties provided herein are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. Without limiting the foregoing, Licensor does not warrant that the Software or Documentation (or YOUR use thereof) will be free from all errors or its use will be uninterrupted. 7.4 Any remedial steps taken by Licensor hereunder shall not extend the applicable Warranty Period. 7.5 Except as expressly authorized by Licensor in writing, all Third-Party Software shall carry only the warranties provided by the owners thereof and Licensor gives no warranties for such Third-Party Software. 8. Proprietary Information; Equitable Relief 8.1 All information concerning or embedded in the Software (including but not limited to source code and training materials), Documentation and Third-Party Software is confidential and shall be considered Licensor’s (or its suppliers’) proprietary information (“Proprietary Information”) whether or not the information is marked as Proprietary Information. The Proprietary Information includes commercially valuable, substantial trade secrets, the design and development of which reflect the effort of skilled development experts and investment of considerable amounts of time and money. 8.2 You acknowledge: (a) any use of the Software, Documentation or Third-Party Software in a manner inconsistent with this License or (b) any other misuse of the Proprietary Information of Licensor (or its suppliers), will cause immediate irreparable harm to Licensor (or its suppliers) for which there is no adequate remedy at law. You agree that Licensor (or its suppliers) shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by you. The parties agree and stipulate that Licensor shall be entitled to such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to U.S. $1,000 shall be sufficient. Nothing contained herein shall limit Licensor’s right to any remedies at law, including the recovery of damages from you for breach of this License. 9. Compliance With Laws You understand and recognize that the Software, Documentation and Third-Party Software made available to you hereunder are subject to all applicable trade control laws and regulations. You hereby agree that you will not tranship, re-export, divert or direct the Software, Documentation or Third-Party Software, other than in and to the ultimate country of destination specified on your order or declared as the country of ultimate destination on Licensor’s invoice, except as permitted by applicable laws and regulations. 10. Limitation of Liability 10.1 The total liability of Licensor, on all claims of any kind (excluding claims for death or bodily injury), whether in contract, warranty, indemnity, tort/extracontractual liability (including negligence), strict liability or otherwise, arising out of the performance or breach of this License or use of any Software, Documentation and Third-Party Software, shall not exceed the price of the specific Software, Documentation or Third-Party Software giving rise to the claim. All Licensor’s liability under this License shall terminate upon the expiration of the Warranty Period, provided that you may enforce a claim of such liability accruing during the Warranty Period by an action timely commenced in accordance with the applicable statute of limitations or statute of repose, but in no event greater than one (1) year after the expiration of such Warranty Period. 10.2 In no event, whether as a result of breach of contract, warranty, tort/extracontractual liability (including negligence), strict liability, indemnity or otherwise, shall Licensor be liable for loss of profits or revenues, loss of use of the Software, Documentation or Third-Party Software or any associated equipment, interruption of business, cost of capital, cost of cover, downtime costs, claims of your customers for such damages or for any special, consequential, incidental, indirect, punitive or exemplary damages. 10.3 If Licensor furnishes you with advice or assistance that is not required under this License, the furnishing of such advice or assistance will not subject Licensor to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. 10.4 For the purposes of this Section 10, the term “Licensor” shall mean Licensor, its affiliates, subcontractors and suppliers of any tier and their respective agents and employees, whether individually or collectively. 11. Dispute Resolution, Governing Law 11.1 If you have your pertinent place of business in a country other than the U.S., Korea, Taiwan, Japan, Thailand, Vietnam, Indonesia or the Philippines, any dispute arising out of or in connection with this License, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one unless the amount in dispute exceeds the equivalent of $1,000,000, in which event it shall be three. When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall appoint the third, who shall be the Chairma. None of the arbitrators may be a national or resident of the countries in which either party is organized or has its principal place of business. The seat, or legal place, of arbitration shall be London, England. The arbitration shall be conducted in the English language. In reaching their decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in this License, and if a solution is not found herein, shall apply the governing law of this License. The decision of the arbitrator shall be final and binding upon both parties, and neither party shall seek recourse to a law court or other authority to appeal for revisions of such decision. 11.2 If you have your pertinent place of business in the U.S., Korea, Taiwan, Japan, Thailand, Vietnam, Indonesia or the Philippines, any dispute arising out of or in connection with this License, shall be brought in the U.S. District Court for the Northern District of New York, or in the event that court lacks jurisdiction to hear the claim, in the appropriate state courts of Onondaga County, New York, and the parties irrevocably consent to the exclusive jurisdiction of such courts in respect of all such claims. Each party hereby submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to its respective person and property, and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery to the party or by the mailing thereof by registered or certified mail, postage prepaid to the other party at the address for the party. 11.3 The validity, performance and all matters relating to the interpretation and effect of this License and all further documents executed pursuant to it shall be construed and interpreted in accordance with the laws of (i) the State of New York, U.S., if you have your pertinent place of business in the U.S. or (ii) England and Wales if you have your pertinent place of business outside of the U.S., excluding its rules on the conflict or choice of laws. If you have your pertinent place of business outside of the U.S., the United Nations Convention on Contracts for the International Sale of Goods shall not apply. 12. Patent Indemnification 12.1 Subject to the terms of this License, Licensor shall indemnify you against any damages, costs and expenses arising out of any suit, claim or proceeding (a “Claim”) alleging that the Software or Documentation infringes a patent in effect in the U.S., an EU member state or country of delivery (provided there is a corresponding patent issued by the U.S. or an EU member state) or U.S. copyright or copyright registered in the country of delivery; provided that: (a) you promptly notify Licensor in writing of any such Claim; (b) you make no admission of liability and gives Licensor sole authority, at Licensor’s expense, to direct and control all defense, settlement and compromise negotiations; and (c) you provide Licensor with full disclosure and assistance that may be reasonably required to defend any such Claim. 12.2 Licensor shall have no obligation or liability with respect to any Claim based upon: (a) any Software or Documentation that has been altered, modified or revised; (b) the combination, operation or use of any Software or Documentation with other products when such combination is part of any allegedly infringing process; (c) failure of you to implement any update provided by Licensor that would have prevented the Claim; or (d) unauthorized use of Software or Documentation, including, without limitation, a breach of the provisions of this License. 12.3 Should any Software or Documentation or any portion thereof, become the subject of a Claim, Licensor may at its option (a) procure for you the right to continue using the Software or Documentation or portion thereof, (b) modify or replace it in whole or in part to make it non-infringing or (c) failing (a) or (b), take back the Software or Documentation and refund any fees received by Licensor attributable to the infringing Software or Documentation. 12.4 This states Licensor’s entire liability for indemnification for patent, trademark, copyright and trade secret infringement for the Software or Documentation. 12.5 Notwithstanding the foregoing, with respect to any Third-Party Software or portions thereof, only the indemnity of the manufacturer/developer, if any, shall apply. 13. General Clauses 13.1 Software and Third-Party Software licensed hereunder are not intended for use in connection with any nuclear facility or activity without the written consent of Licensor. You warrant that you shall not use or permit others to use Software or Third-Party Software for such purposes, unless Licensor agrees to such use in writing. If, in breach of the foregoing, any such use occurs, Licensor disclaims all liability for any nuclear or other damages, injury or ontamination and in addition to any other legal or equitable rights of Licensor, you shall indemnify and hold Licensor harmless against any such liability. If Licensor agrees in writing to any such nuclear use, Licensor’s special terms and conditions for nuclear applications and protections against nuclear liability shall be attached and incorporated fully herein by reference. 13.2 Licensor may assign or novate its rights and obligations under this License, in part or in whole, to any entity directly or indirectly controlling, controlled by or under common control with Licensor without your consent. You agree to execute such documents as may be necessary to effect the assignment or novation. The delegation or assignment by you of any or all of your duties or rights under this License without Licensor’s prior written consent shall be void. 13.3 If any provision of this License is found to be void or unenforceable the remainder of this License shall not be affected and the parties hereby agree that they will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and which is valid and enforceable. 13.4 This License represents the entire agreement between the parties, and no modification, amendment or waiver shall be binding on either party unless agreed in writing by the parties’ authorized representatives. 13.5 For direct and indirect U.S. government contracts only, all Software, Documentation and Third-Party Software provided hereunder shall be considered “commercial items” as defined in FAR Part 2, 2.101 and in accordance with FAR 52.244-6. If the reasonableness of the price cannot be established, if cost or pricing data is required for any other reason, or if the Software, Documentation or Third-Party Software cannot be considered “commercial items,” Licensor may withdraw the proposal or cancel this License without penalty or other liability. 13.6 Upon request you agree to provide Licensor with a signed copy of this License.
