Eaton Corporation End User License Agreement

IMPORTANT, READ CAREFULLY. THIS EATON CORPORATION END USER LICENSE AGREEMENT (THE "AGREEMENT") IS A BINDING CONTRACT BETWEEN YOU, THE END-USER (THE "LICENSEE") AND EATON CORPORATION ("EATON" OR "LICENSOR"). EXCEPT TO THE EXTENT YOU ARE BOUND BY A WRITTEN AGREEMENT SIGNED BY BOTH YOU AND EATON REGARDING THE USE AND LICENSE OF THIS SOFTWARE PRODUCT, BY INSTALLING OR USING THIS SOFTWARE PRODUCT, YOU, THE LICENSEE, ARE AGREEING TO BE BOUND BY THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, WHICH INCLUDES, BUT IS NOT LIMITED TO, THE SOFTWARE USAGE LICENSE, THE DISCLAIMER OF WARRANTY AND LIMITED WARRANTY, AND LIMITATION OF EATON LIABILITY. READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, PROMPTLY DELETE THE LICENSE FILE MEDIA, THE ENTIRE MEDIA PACKAGE AND SOFTWARE FROM YOUR COMPUTER AND RETURN THE LICENSE FILE DISKETTE(S), THE ENTIRE DISK PACKAGE AND ALL OTHER ITEMS (INCLUDING DOCUMENTATION AND PACKAGING) WITHIN 30 DAYS OF RECEIPT OF THE SOFTWARE TO THE PLACE FROM WHICH YOU OBTAINED IT FOR A FULL REFUND. EACH EATON LICENSED PRODUCT INCORPORATES ADDITIONAL TERMS, CONDITIONS, AND LIMITATIONS THAT ARE IDENTIFIED AS EXHIBITS TO THIS AGREEMENT (SOME OR ALL OF WHICH ARE ATTACHED AND INCORPORATED HEREIN). NOTWITHSTANDING THE ATTACHED EXHIBITS, LICENSOR MAY LICENSE ADDITIONAL PRODUCTS TO LICENSEE SUBJECT TO THE ADDITIONAL EXHIBITS, A LISTING OF WHICH IS AS FOLLOWS: "EXHIBIT A" APPLIES TO EATON PRODUCTS. 1.0 Definitions 1.1 Documentation. Documentation means the user guides and manuals for the installation and use of the Software, whether provided in CD-ROM, hard copy, or other form. 1.2 License Fee. License Fee means the fee paid to Eaton for each specific license to use the Software granted hereunder as may be identified in an Order Form received and accepted by Eaton. 1.3 License File. License File means a component of the Software that enables one or more other components of the Software and may also specify the location of the Designated Device and the Licensee. The License File also specifies certain limitations on the use of the enabled components of the Software and the purposes for, and extent to, which the enabled components of the Software may be used. Certain components of the Software may be licensed hereunder without a License File. For reference purposes, the components of the Software enabled by a particular License File correlate to Eaton part numbers as may be reflected on the License File or on one or more Order Forms or License Certificate. 1.4 Licensed Key. License Key means a key provided to Licensee by Eaton to enable functionality of the Software. 1.5 Order Form. Order Form means (i) the document in hard or electronic copy by which particular Software or Technical Support Services is ordered by or for Licensee and by which Eaton is advised of the location of the Designated Device and (ii) any order confirmation that may be issued by Eaton acknowledging receipt of, or accepting, an order by Licensee for particular Software or Technical Support Services. 1.6 Software. Software means the computer software programs for which Licensee is granted a license hereunder, the License Files necessary to enable those programs, the Documentation therefore and, to the extent Licensee either purchases an Update or is entitled to receive Updates in connection with certain Technical Support Services purchased pursuant to Section 3.2, Updates thereto. All computer programs are licensed hereunder in object code (machine-readable) form only except that certain "toolkit" software programs may include limited portions in source code (human-readable) form. 1.7 Technical Support (Maintenance) Services. Technical Support (Maintenance) Services means: (i) services provided to Licensee under an Support Agreement pursuant to Eaton's Support Services Policies, Terms and Conditions ("Support Services Policy") in effect on the date the Software is delivered to Licensee or as changed from time to time by Eaton, and may include if available for the Eaton Licensed Product (ii) Training Services provided pursuant to Eaton's Training policies in effect on the date such services are ordered by or for Licensee. 1.8 Update. Update means: (a) supplemental programs, if and when developed and distributed by Eaton, that may contain bug fixes or improved program functions for the Software; and (b) a subsequent release of the Software, if and when developed by Eaton, which Eaton generally makes available for licensees that have an Support Agreement and to which Licensee is entitled under the Support Services Policy by virtue of having purchased such services. An Update does not include any release, new version, option, or future product, which Eaton licenses separately. 2.0 Software License 2.1 Ownership. Licensee owns the magnetic or other physical media upon which the Software is originally or subsequently recorded or fixed, but Eaton or Eaton Licensors retains all title, copyright and other proprietary rights in, and ownership of, the Software regardless of the media upon which the original or any copy may be recorded or fixed. Licensee does not acquire any rights, express or implied, other than those expressly granted in this Agreement. Eaton grants to Licensee a non-exclusive, non-assignable license to use the Software in conjunction with the operation of Eaton products or other products described by Eaton in the Documentation. Licensee will use Licensed Keys provided per the limitations set forth in the Order Form Licensee will not, nor will Licensee suffer or permit others to, modify, adapt, translate, reverse engineer, decompile, or disassemble the Software or any component thereof (including the Documentation), or create derivative works based on the Software (including the Documentation), except to the extent such forgoing restriction is prohibited by applicable law. 2.2 Copy Restrictions. Copyright laws and international treaties protect the Software, including the Documentation. Unauthorized copying of the Software, the Documentation or any part thereof, is expressly prohibited. Subject to these restrictions, Licensee may make a reasonable number of copies of the Software solely for backup or archival purposes, and may make a limited number of copies of the Documentation for use by Licensee in connection with its authorized use of the Software. Licensee will number and account for all such copies. All titles, trademarks, and copyright and restricted rights notices included in the Software and Documentation will be reproduced in such copies. 2.3 Transfer and Assignment Restrictions. Licensee will not voluntarily sell or involuntarily assign, lease, sublicense, encumber, or otherwise transfer its interest in this Agreement or in the Software, or Documentation in whole or in part, or allow any other person (except Licensee's bona fide employees) or entity, including any parent or subsidiary of Licensee or other subsidiary of Licensee's parent, to use the Software without the written consent of Eaton. Any dissolution, merger, consolidation, or other reorganization of Licensee, or the sale or other transfer of a controlling percentage of the capital stock of Licensee shall be deemed a voluntary assignment. 2.4 Verification. At Eaton's written request, not more frequently than annually, Licensee will furnish Eaton with a signed certification verifying that the Software is being used in accordance with the provisions of this Agreement. Eaton may audit Licensee's use of the Software. Any such audit will be conducted during regular business hours at Licensee's facilities and will not unreasonably interfere with Licensee's business activities. If an audit reveals that Licensee is using Software contrary to the terms and limitations of this License Agreement then Licensee will be invoiced for additional license fees consistent with Licensee's actual use of the Software in accordance with Eaton's then current price list for the Software and the cost of the audit, which amount will be immediately due and payable. This assessment of additional fees will be without prejudice to any other remedies Eaton may have for breach of this Agreement, including without limitation termination under Section 3.2. 3.0 Termination. 3.1 Termination by Licensee. Licensee may terminate the license granted hereunder at any time upon delivery of written notice to Eaton. Termination will not relieve Licensee of its obligations specified in Section 3.3 below. 3.2 Termination by Eaton. This Agreement and the license granted hereunder automatically terminates if Licensee breaches any provision of this Agreement including but not limited to the failure to pay in full the License Fee or Technical Support (Maintenance) fee when due. 3.3 Effect of Termination. Immediately upon termination of this Agreement or the license granted hereunder, Licensee will cease using the Software, will delete the Software, including the License File(s), from its computers and will either return to Eaton or destroy the Software, including the License File(s), Documentation, packaging and all copies thereof. If Licensee elects to destroy the Software then Licensee will certify in writing to Eaton the destruction of the Software. Termination of this Agreement and return or destruction of the Software will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Licensee's obligation to pay all fees and expenses that have accrued or are otherwise owed by Licensee under this Agreement or any Order Form received and accepted by Eaton. The parties' rights and obligations under the following sections of this Agreement will survive termination of this Agreement: Article 1.0, Article 2.1, Section 2.2, Section 2.3, Section 2.4 Article 3.0, Article 4.0 and Article 5.0. 4.0 Infringement, Indemnity and Remedies 4.1 Infringement Indemnity. Subject to the limitations in Articles 4 and 5 of this Agreement, Eaton will defend and indemnify Licensee against a third party claim (an "Indemnified Claim") that the Software infringes any patent and/or copyright enforceable in the United States of America or misappropriates any trade secret (as the terms "misappropriation" and "trade secret" are defined in the Uniform Trade Secrets Act) protected under the laws of any of the United States, provided that: (i) Licensee notifies Eaton in writing within 30 days of the claim; (ii) Eaton has sole control of the defense and all related settlement negotiations; and (iii) Licensee provides Eaton with the assistance, information and authority necessary to perform Eaton's obligations under this Section. For any intellectual property claim for which a defense is not provided in this Section 4.1, Eaton, in its sole discretion, may elect to treat such intellectual property claim as an Indemnified Claim as defined in this Section 4.1. Eaton will have no liability for any claim of infringement based on use of a superseded or altered release of Software if the infringement would have been avoided by the use of a current unaltered release of the Software which was obtainable by Licensee from Eaton. Eaton will have no obligation to any Licensee for any Indemnified Claims relating to allegations of copyright infringement which arise outside the geographical boundaries of the United States, Canada, Japan, or the European Union ("Included Jurisdictions"), or any Indemnified Claims relating to allegations of trade secret misappropriation which arise outside the geographical boundaries of the United States. If the Software is held, or is believed by Eaton, to infringe, then Eaton will have the option, at its expense, to: (i) modify the Software to be noninfringing; or (ii) obtain for Licensee a license to continue using the Software. If, in Eaton's sole discretion, it is not economically or commercially reasonable to perform either of the above options then Eaton may terminate the license for the infringing Software and refund to Licensee the License Fee paid to Eaton for the infringing Software. This Section 4.1 states Eaton's entire liability and Licensee's sole and exclusive remedy for infringement of intellectual property rights. 4.2 Limited Warranties and Disclaimers. 4.2.1 Limited Media Warranty. Eaton warrants for a period of ninety (90) days following delivery of the Software that the CD-ROMs, diskettes, or other media upon which the Software is delivered are free from defects in materials and workmanship under normal use. 4.2.2 Limited Software Warranty. Eaton warrants for a period of ninety (90) days following delivery of the Software that the Software will perform substantially in accordance with the Documentation. 4.2.3 Limited Maintenance Support Services Warranty. Eaton warrants for a period of ninety (90) days following performance of the service that its Maintenance Support Services will be performed consistent with generally accepted industry standards. 4.2.4 Exclusive Remedy. For any breach of the warranties contained in this Section 4.0, Licensee’s exclusive remedy, and Eaton’s entire liability will be: 4.2.4.1 For Software. Eaton will use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any such material defect in a reasonably timely manner. If Eaton is unable to make the Software operate as warranted, then Licensee may, within thirty (30) days after Eaton's failure to cure or fix the defect, elect to terminate the license granted hereunder and recover the License Fee paid to Eaton with respect to the defective Software; 4.2.4.2 For Maintenance Support Services. The reperformance of the services, or if Eaton is unable to perform the services as warranted, Licensee will be entitled to recover the fees paid to Eaton for the unsatisfactory service. 4.2.4.3 For Media. The replacement of the defective media returned within ninety (90) days of delivery of the Software. 4.3 Disclaimer of All Other Warranties. NOTWITHSTANDING ADDITIONAL WARRANTIES PROVIDED PURSUANT TO LICENSOR'S EXHIBITS AND AMENDMENTS INCLUDED HEREIN, THE WARRANTIES ABOVE IN THIS SECTION 4.2 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EATON, ITS DEALERS, DISTRIBUTORS OR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES GIVEN IN THIS SECTION, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. This software will work with other manufacturers' UPS systems. Reference will be made to those manufacturers by their trade names, trademarks, and models. Eaton does not warrant that the Software will meet Licensee's requirements, that the Software will operate in combinations other than as specified in the Documentation, that the operation of the Software will be uninterrupted or error-free or that Software errors will be corrected. Preproduction releases (including Alpha and Beta site releases) of Software and Technical Support Services related thereto are distributed "AS IS". 5.0 General Provisions. 5.1 Update Policy. Eaton may from time to time, but has no obligation to, create Updates of the Software or components thereof. Subject to the Support Services Policy in effect at the time Licensee orders Technical Support (Maintenance) Services, Eaton will make such Updates available to Licensee provided Licensee has entered into a Support Agreement, and is not in breach of this Agreement at the time of the release of the Update. 5.2 Liability Limitation. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR LICENSEE'S VIOLATION OF THE ARTICLE 2.0 OF EACH EXHIBIT ENTITLED "SOFTWARE LICENSE AND LIMITATION", IN NO EVENT WILL EITHER PARTY, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE, INCLUDING EATON LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EATON'S LIABILITY FOR DAMAGES AND EXPENSES HEREUNDER OR RELATING HERETO (WHETHER IN AN ACTION IN CONTRACT OR TORT) WILL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES PAID TO EATON WITH RESPECT TO THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM LICENSEE'S USE OF PARTICULAR LICENSE FILES OR TECHNICAL SUPPORT SERVICES THEN SUCH LIABILITY WILL BE LIMITED TO LICENSE FEES PAID TO EATON FOR THE RELEVANT SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, PORTIONS OF THE ABOVE, THE LIMITATION MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN EATON AND LICENSEE. EATON' PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. 5.3 Notices. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail to the address shown on the relevant Order Form (if to Licensee) or to the Eaton address shown on the relevant Order Form (if to Eaton). 5.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. 5.5 Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Eaton's proprietary rights in the Software, no action, regardless of form, arising from or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued. 5.6 Entire Agreement. This Agreement (together with any Exhibit and information from the Order Forms and License Files necessary to identify the Software that is the subject of this Agreement or further specific restrictions applicable to such Software) constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. No other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement, the attached Exhibit, and any Order Form issued by Eaton will supersede the terms in any Order Form or other purchasing document submitted by Licensee; and the pre-printed terms of any Licensee Order Form or other purchasing document are expressly rejected. Certain components of the Software may also be subject to a paper or electronic license agreement delivered by or on behalf of Eaton concurrently herewith, the terms of which will be supplemental hereto to the extent not inconsistent herewith. If a copy of this Agreement in a language other than English is included with the Software or Documentation, it is included for convenience and the English language version of this Agreement will control. 5.7 Heirs, Successors, and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained will be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns. 5.8 Export Restrictions. Licensee agrees to comply fully with all relevant export laws and regulations of the United States (the "Export Laws") to assure that neither the Software nor any direct product thereof are (I) exported, directly or indirectly, in violation of Export Laws; or (ii) are intended to be used for any purposes prohibited by the Export Laws. Without limiting the foregoing Licensee will not export or re-export the Software: (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, which currently include, but are not limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country; (ii) to any end user who Licensee knows or has reason to know will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. 5.9 U.S. Government Restricted Rights. The Software is a "commercial item" as that term is defined at 48 CFR 2.101 (October 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 CFR 12.212 (September 1995), and is provided to the U.S. Government only as a commercial end item. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Contractor/ manufacturer is Eaton Corporation, 8609 Six Forks Road, Raleigh, North Carolina 27615. 5.10 Third Party Intellectual Property Right Notices. The Software may contain components that are owned by third parties ("Eaton Licensors") and are incorporated into, or embedded in, the Software pursuant to license arrangements between Eaton and such third parties. Use of the Eaton Licensor components embedded in the Software is subject to: (i) this Agreement or (ii) the Eaton Licensors end user license agreement (EULA) if provided with the installation of the Software (a copy of which is available from Eaton upon request). In addition, License agrees that the embedded components may not be used in any other fashion or for any other purpose other than as provided under this Agreement or the EULA. Copyright and other proprietary rights notices of Eaton and Eaton Licensors are contained in the Software, and Licensee will not modify, delete, or obfuscate any such notices. 5.11 Confidentiality. The Software, including the Documentation, the terms and pricing under this Agreement, and any other information that may be marked as confidential is confidential and proprietary information of Eaton ("Confidential Information"). Results of any benchmark or general performance or feature evaluation tests on the Software run by Licensee may not be disclosed outside of Licensee's organization without the prior written consent of Eaton. Licensee will hold the Confidential Information in strict confidence during the term of this Agreement and until such Confidential Information falls within the public domain. Licensee will take reasonable steps to ensure that its employees and agents also comply with the strict confidentiality obligations of this Section. Licensee acknowledges that confidential aspects of the Software (including any source code) is a trade secret of Eaton, the disclosure of which would cause substantial harm to Eaton that could not be remedied by the payment of damages alone. Accordingly, Eaton will be entitled to preliminary and permanent injunctive and other equitable relief for any breach of this Section 5.11. 5.12 Note on JAVA Support. The Software may contain support for programs written in JAVA. JAVA technology is not fault tolerant and is not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, or weapons systems, in which the failure of JAVA technology could lead directly to death, personal injury, or severe physical or environmental damage. EATON DISCLAIMS ALL DAMAGES INCLUDING DIRECT, INDIRECT AND CONSEQUENTIAL DAMAGES RELATING TO THE FAILURE OF ANY SOFTWARE INCLUDING JAVA PROGRAMS AND/OR JAVA TECHNOLOGY. 5.13 Eaton. Through its Eaton Solution Providers Program Eaton may make available for licensing from independent third party vendors ("Program Vendors") certain computer software products ("Program Products"). Licensing and use of Program Products are subject to the terms and limitations of separate license agreements with each such Program Vendor, which license agreements must be viewed and accepted prior to, or concurrently with, the down-loading or installation of the Program Product. Eaton makes no representation or warranty with respect to any Program Products. 5.14 Governing Law. This Exhibit and the Agreement will be interpreted and enforced in accordance with the laws of the State of Ohio or Pennsylvania, without regard to choice of law principles. 5.15 Jurisdiction and Arbitration Jurisdiction and Arbitration All disputes, claims or controversies arising out of or relating to this Exhibit or the Agreement that are not resolved by the parties' good faith attempt to negotiate a resolution will be submitted to final and binding arbitration before JAMS/Endispute, or its successor, in Norfolk County Massachusetts, USA, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. The arbitration will be conducted in accordance with the provisions of JAMS/Endispute's Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS/Endispute and each other in selecting a single arbitrator who will be a former judge or justice with substantial experiences in resolving business disputes with particular experience in resolving disputes involving computer software. The costs of arbitration will be shared equally by the parties. The provisions of this Section may be enforced by any court of competent jurisdiction. The arbitrator will not be empowered to award damages in excess of, or inconsistent with, the liability limitations contained in this Exhibit or the Agreement; however, the prevailing party will be entitled to an award of all costs, fees and expenses, including expert witness fees and attorneys fees, to be paid by the party against whom enforcement is ordered .