Broadwin Technology, Inc. License Agreement
October 12, 2001
Important. Please read carefully. This license agreement (the "agreement") is a binding contract between you, the end-user (the "licensee") and BroadWin technology Inc. ("BroadWin" or the "licensor"). By installing or using this software product, you, the licensee, are agreeing to be bound by the terms, conditions and limitations of this agreement, including, but not limited to, and in particular, the limitations on: the use as set forth in section 2, the transferability as set forth in section 6, the limited warranty as set forth in section 10, the disclaimers as set forth in section 11, the remedies as set forth as section 12, the limitation of Broadwin's liability as set forth in section 13, and the export restrictions as set forth as section 14. Please read the terms and conditions of this agreement carefully before installing or using the software. If you do not agree to any of the terms, conditions and limitations of this agreement, please do not use this software and return the entire contents of the software product unused, with proof of payment, within 3o days of receipt of delivery to the place from which you obtained it for a full refund.
a. “SOFTWARE” means the contents of the files, disk(s), CD-ROM(s), or other media which accompanies AGREEMENT, the License Files necessary to enable SOFTWARE, the SCADA NODE SOFTWARE, the DOCUMENTATION and UPDATES, (to the extent Licensee either purchases UPDATES or is entitled to receive UPDATES in connection with certain Technical Support Services purchased pursuant to Section 7). All SOFTWARE are licensed in object code (machine-readable) form only.
b. “SCADA NODE” means a single computer owned, leased or otherwise controlled by Licensee on which SOFTWARE is to be installed that runs or operates SCADA NODE SOFTWARE. Each individual SCADA NODE will be charged a separate fee called “SCADA NODE FEES” which is incorporated into the License Fee.
c. “CLIENT SOFTWARE” means those files or programs in SOFTWARE that allows a computer to run, access or utilize the services provided by the Project Node Software or the SCADA Node Software. A computer using CLIENT SOFTWARE or accessing or utilizing a computer acting as PROJECT NODE or a SCADA NODE is called a “CLIENT”.
d. “PROJECT NODE SOFTWARE” means those files or programs in SOFTWARE that allows a computer, acting as a PROJECT NODE, to run services that may be run, accessed or used by a CLIENT or a SCADA NODE. A Computer running PROJECT NODE SOFTWARE is called a “PROJECT NODE”.
e. “SCADA NODE SOFTWARE” means those files or programs in SOFTWARE that allows a SCADA NODE to run, access or utilize the services provided by the SCADA NODE SOFTWARE.
f. “LICENSE”, means the required license for the use of SOFTWARE.
g. “DOCUMENTATION” means the user guides and manuals for the installation and use of SOFTWARE, whether provided in CD-ROM, print or in any other media.
h. “UPDATES” means: (a) supplemental computer program(s), if and when developed and distributed by Broadwin, that may improve program functions for SOFTWARE, and (b) a subsequent release of SOFTWARE, if and when developed by Broadwin, which Broadwin generally makes available for Licensees that have purchased Comprehensive Support Services. UPDATES do not include any releases or versions of products that Broadwin licenses separately.
i. “ORDER FORM” means the collective documents in writing or electronic form by which SOFTWARE, including the number of SCADA NODE(S), Tags, or other programs and/or services of Broadwin are ordered by or on behalf of Licensee, including Broadwin’s written or electronic confirmation acknowledging receipt of and its acceptance of Licensee’s order. All ORDER FORMS must include Licensee’s address and the number of the SCADA NODE(s) in which SOFTWARE will be installed or run and the address of such SCADA NODE(S).
j. “License File” means a component of SOFTWARE that enables one or more components of SOFTWARE other than the License File. The License File may specify the location of the SCADA NODE(S) and the Licensee and also identify the specific limitations on the use, the purposes for and extent to which the enabled components of SOFTWARE may be utilized. The License File must match the License Hardware Key. A Broadwin product number identifies each component of SOFTWARE enabled by License File.
k. “License Hardware Key” or "HARD KEY" is a physical device which connects to the printer port of the SCADA NODE. Both the License Hardware Key and the matching License File must be installed on a SCADA NODE running SCADA NODE SOFTWARE for the proper operation of SOFTWARE.
l. “License Fee” means the fee to be paid to Broadwin for the LICENSE to use SOFTWARE. License Fee includes SCADA NODE FEES.
2. Software License.
Grant of LICENSE. In consideration of the payment of License Fee and subject to the terms, conditions and limitations set forth in this Agreement, in the License File and in ORDER FORM accompanying this Agreement, Broadwin grants to Licensee a nonexclusive LICENSE to use SOFTWARE and to install and run SCADA NODE SOFTWARE on the number of SCADA NODE(S) as designated upon ORDER FORM. Additionally, Broadwin further grants to Licensee the non-exclusive LICENSE to the use the number of Tags as is also designated upon ORDER FORM.
Version Limitations. The SOFTWARE, and various components thereof, contain certain version numbers (such as version ”2.1”). This Agreement permits Licensee to install the SOFTWARE with the same (or a lower) version number as the SOFTWARE version number listed on the License File or ORDER FORM (or in an UPDATES that is part of the SOFTWARE hereunder licensed) on the number of SCADA NODES authorized hereunder (for example, if the version number listed for a particular component of the SOFTWARE is “2.1”, then Licensee may install a copy of that component of the SOFTWARE having a ”2.0”, “2.1” version number, but not a “2.2” or ”2.3” version number). Licensor may grant exception to this Version Limitation via a published Version Update Policy. Licensee should contact Licensor for the latest Version Update Policy.
I/O Drivers. Certain I/O driver software may be included as part of the SOFTWARE. Licensee may use any compatible standard Broadwin I/O driver software with any other applicable SOFTWARE components.
Limitations On Use:
CLIENT. An unlimited number of CLIENTS are permitted to access the services of a PROJECT NODE or SCADA NODE and Licensee may download, distribute and install CLIENT SOFTWARE to an unlimited number of Computers to access the services of a PROJECT NODE or SCADA NODE without the need to acquire a separate LICENSE or pay an additional fee for each such additional CLIENT. Licensee may also transfer the CLIENT SOFTWARE from one CLIENT to another for application development or for operation of the SOFTWARE.
PROJECT NODE. Licensee may install and use multiple copies of PROJECT NODE SOFTWARE upon any number of PROJECT NODE(S) as is required, which PROJECT NODES may be connected to an unlimited number of CLIENTS or SCADA NODES. Licensee may transfer the PROJECT NODE SOFTWARE from one PROJECT NODE to another for application development or for operation of the SOFTWARE.
SCADA NODE. Licensee may install and run SCADA NODE SOFTWARE upon the number of SCADA NODE(S) identified in ORDER FORM and only those SCADA NODE(S). Licensee may not install, copy or run SCADA NODE SOFTWARE in any computer(s) in excess of the number specifically authorized by Broadwin.
Tag Counts. Licensee may utilize or reference only those number of Tags specified for use by Licensee in License File or ORDER FORM.
Modification Restrictions. Licensee shall not, nor shall Licensee suffer or permit others to, modify, adapt, translate, reverse engineer, decompile or disassemble the SOFTWARE or any component thereof, or create derivative works based on SOFTWARE, except to the extent such forgoing restriction is prohibited by applicable law.
Demonstration Restrictions. If SOFTWARE licensed hereunder is for Demonstration use, then it may only be used to (a) demonstrate the product for sales, marketing or similar use (b) to develop or engineer a system to be licensed, (c) test an existing system and/or (d) provide training on use of SOFTWARE. Demonstration use shall not be used in lieu of obtaining a LICENSE and paying a License Fee.
No Multiplexing or Pooling. Use of software or hardware that increases the number of SCADA NODES directly accessing or utilizing a single License HARD KEY (commonly referred to as “multiplexing” or “pooling”) are not allowed and any such multiplexing or pooling shall be a breach of this Agreement.
3. Intellectual Property Rights
Ownership. Licensee owns the magnetic or other physical media upon which SOFTWARE is recorded or affixed, however Broadwin or Broadwin's Licensors retains all right, title, interest, copyright and other proprietary rights in, and ownership of 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, in SOFTWARE, or any of its components, other than those expressly granted in this Agreement.
Confidentiality. 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 Broadwin ("Confidential Information"). For consideration given, the sufficiency of which is acknowledged by Licensee, Licensee shall hold the Confidential Information in strict confidence during the term of this Agreement and for a period of five (5) years thereafter. Results of any benchmark tests on the SOFTWARE or any of its components run by Licensee may not be disclosed outside of Licensee's organization without the prior written consent of Broadwin. Licensee shall use its best efforts 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 Broadwin, the disclosure of which would cause substantial harm to Broadwin that could not be remedied by the payment of damages alone. Accordingly, Broadwin will be entitled to preliminary and permanent injunctive and other equitable relief for any breach of this Section.
5. SOFTWARE Copy Restrictions
Copy Restrictions. Copyright laws and international treaties protect SOFTWARE. Unauthorized copying of SOFTWARE, or any part thereof, is expressly prohibited. Subject to these restrictions, Licensee may make copies of SOFTWARE solely for demonstration, development, training, hot standby, backup or archival purposes, and may make a limited number of copies of DOCUMENTATION for use by Licensee in connection with its authorized use of SOFTWARE. Licensee shall number and account for all such copies. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies.
6. Restriction Upon Transfers
Transfer and Assignment Restrictions. Licensee may not transfer, sublicense, rent, lease, sell, loan or assign SOFTWARE or any part thereof, or any of its rights or duties under this Agreement, to any other person or entity without the prior written consent of Broadwin.
Verification. At Broadwin's written request, but no more than once each calendar year, Licensee shall furnish Broadwin with a signed certification verifying that SOFTWARE is being used in accordance with the provisions of this Agreement. Broadwin may audit Licensee's use of the Software and its components. Any such audit shall be conducted during regular business hours at Licensee's facilities and shall not unreasonably interfere with Licensee's business activities. If an audit reveals that Licensee is using SOFTWARE or any of its components contrary to the terms and limitations of this LICENSE Agreement then Licensee shall be invoiced for additional License Fees consistent with Licensee's actual use of SOFTWARE in accordance with Broadwin's then current price list for SOFTWARE, which amount shall be immediately due and payable. This assessment of additional fees shall be without prejudice to any other remedies Broadwin may have for breach of this Agreement, including without limitation termination under Section 8.
7. Technical Support Services.
Basic Support Services. Basic Support Services will be provided to Licensee subject to the provisions and limitations in this Agreement and Broadwin's Technical Support Services Policy in effect on the date the SOFTWARE is delivered to Licensee.
Comprehensive Support Services. If Licensee purchases Comprehensive Support Services then such services will be provided to Licensee subject to the provisions and limitations in this Agreement and the Technical Support Services Policy in effect on the date such Technical Support Services are ordered by Licensee. The price of such services will be based on Broadwin's (or its authorized distributor's, as the case may be) price list in effect on the date such Technical Support Services are ordered by or for Licensee.
Training Services. Training Services will be provided to Licensee subject to the provisions and limitations in this Agreement and Broadwin's Training policies in effect on the date such Training Services are ordered by or for Licensee. The price of such services will be based on Broadwin's price list in effect on the date such Training Services are ordered by Licensee.
8. Term and Termination.
Term. The LICENSE granted hereunder shall continue perpetually unless terminated by Licensee or Broadwin under this Article.
Termination by Licensee. Licensee may terminate the LICENSE granted hereunder at any time upon delivery of written notice to Broadwin. Termination shall not relieve Licensee of its obligations specified herein below.
Termination by Broadwin. This Agreement and the LICENCE granted hereunder automatically terminates if Licensee breaches any provision of this Agreement.
Effect of Termination. Immediately upon termination of this Agreement or the LICENSE granted hereunder, Licensee shall cease using the SOFTWARE, shall delete the SOFTWARE, including the License File(s), from its CLIENTS, PROJECT NODE(S), SCADA NODE(S) or any other computer which any portion of SOFTWARE has been installed and shall return to Broadwin the License Hardware Key(s). If Licensee elects to destroy the SOFTWARE then Licensee shall certify in writing to Broadwin the destruction of the SOFTWARE. Termination of this Agreement and return or destruction of the SOFTWARE shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall 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 Broadwin. The parties' rights and obligations under this Agreement shall survive termination of this Agreement
Infringement Indemnity. Subject to the limitations in Article 3 of this Agreement, Broadwin will defend and indemnify Licensee against third party claim(s)that SOFTWARE infringes any copyright enforceable within the geographical boundaries of the United States, Canada, Japan, or the European Union (hereinafter the “Included Jurisdiction”), or that SOFTWARE 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 (an “Indemnified Claim), provided that: (i) Licensee notifies Broadwin in writing within 30 days of the claim; (ii) Broadwin has sole control of the defense and all related settlement negotiations; and (iii) Licensee provides Broadwin with the assistance, information and authority necessary to perform Broadwin's obligations under this Section. For any intellectual property claim for which a defense is not provided in this Section, Broadwin, in its sole discretion, may elect to treat such intellectual property claim as an Indemnified Claim as defined in this Section. Broadwin shall have no liability for any claim(s) of infringement based on use of a superseded 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 Broadwin. Broadwin shall have no liability for any claim(s) of infringement based on use of an altered release of SOFTWARE. Broadwin shall have no obligation to any Licensee for any Indemnified Claims relating to allegations of copyright infringement which arise outside the geographical boundaries of the Included Jurisdictions, or any Indemnified Claims relating to allegations of trade secret misappropriation which arise outside the geographical boundaries of the United States.
If SOFTWARE is held, or is believed by Broadwin, to infringe, then Broadwin shall 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 Broadwin's sole discretion, it is not economically or commercially reasonable to perform either of the above options then Broadwin may terminate the LICENSE for the infringing SOFTWARE and refund to Licensee the License Fee paid to Broadwin for the infringing SOFTWARE. This Section 9 states Broadwin's entire liability and Licensee's sole and exclusive remedy for infringement.
10. Limited Warranties.
Limited Software Warranty. Broadwin warrants for a period of ninety (90) days following delivery of SOFTWARE that SOFTWARE will perform substantially in accordance with the DOCUMENTATION.
Limited Media Warranty. Broadwin warrants for a period of ninety (90) days following delivery of the SOFTWARE that the CD-ROMs, diskettes or other media upon which SOFTWARE is delivered are free from defects in materials and workmanship under normal use.
Limited License Hardware Key Warranty. Broadwin warrants for a period of ninety (90) days following delivery of the Software that the License Hardware Key is free from defects in materials and workmanship under normal use. The defective key must be returned prior to Broadwin shipping a replacement.
Limited Technical Support Services Warranty. Broadwin warrants for a period of ninety (90) days following performance of the service that its Technical Support Services will be performed consistent with generally accepted industry standards.
Disclaimer of All Other Warranties. The warranties above stated in section 10 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 BroadWin, its dealers, distributors or agents or employees shall 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.
Broadwin does not warrant that SOFTWARE: (i) will meet Licensee's requirements, (ii) that the SOFTWARE will operate in combinations other than as specified in the DOCUMENTATION, (iii) that the operation of SOFTWARE will be uninterrupted or error-free or (iv) 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".
Exclusive Remedies. For any breach of the warranties contained in Section 10, Licensee's exclusive remedy, and Broadwin's entire liability, shall be:
a. For SOFTWARE. Broadwin shall use commercially reasonable efforts to provide maintenance modifications or fixes in a reasonably timely manner should SOFTWARE fail to perform substantially in accordance with DOCUMENTATION. If Broadwin is unable to make SOFTWARE operate as warranted, then Licensee may, within thirty (30) days after Broadwin's failure to cure or fix the defect, elect to terminate the LICENSE granted hereunder and recover the License Fee paid to Broadwin with respect to the defective SOFTWARE.
b. For Media. The replacement of the defective media returned within ninety (90) days of delivery of SOFTWARE.
c. For License Hardware Key. The replacement of the defective License Hardware Key and a new matching License File returned within ninety (90) days of delivery of SOFTWARE.
d. For Services. If Broadwin is unable to perform the services as warranted, Licensee shall be entitled to recover the fees paid to Broadwin for unperformed service.
13. Limitations of Liability
Limitation of Liability. Notwithstanding any provision of this agreement to the contrary, in no event shall either party, nor anyone else who has been involved in the creation, production or delivery of the software, including BroadWin 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. Broadwin's liability for damages and expenses hereunder or relating hereto (whether in an action in contract or tort) shall in no event exceed the amount(s) paid to BroadWin 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 shall be limited to amounts paid to BroadWin 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 limitation may not apply to you. The provisions of this agreement allocate the risks between BroadWin and licensee. Broadwin's pricing reflects this allocation of risk and the limitation of liability specified herein.
14. Export Restrictions.
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: exported, directly or indirectly, in violation of Export Laws; or are intended to be used for any purposes prohibited by the Export Laws. Without limiting the foregoing, Licensee will not export or re-export SOFTWARE to any country to which the U.S. has embargoed or restricted the export of goods or services, which currently include, and which list may be amended from time to time, 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; 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 to any end-user who has been prohibited from participating in United States export transactions by any federal agency of the United States government.
United States Government Restricted Rights. SOFTWARE is a “commercial item” as that term is defined at 48 CFR 2.101 (October 1998), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 CFR 12.212 (September 1998), 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 1998), all U.S. Government End Users acquire the Software with only those rights set forth herein.
15. General Provisions.
UPDATES Policy. Broadwin may from time to time, but has no obligation to, create UPDATES of the SOFTWARE or components thereof. Subject to the Technical Support Services Policy in effect at the time Licensee orders Technical Support Services, Broadwin will make such UPDATES available to Licensee provided Licensee is a Comprehensive Support or Site Support Service subscriber and not in breach of this Agreement at the time of the release of the UPDATE.
Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, United States of America, without regard to choice of law principles.
Jurisdiction and Arbitration. All disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by the parties' good faith attempt to negotiate a resolution shall be submitted to final and binding arbitration, before JAMS, or its successor, in Contra Costa County, California, 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’ Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The parties will cooperate with JAMS and each other in selecting a single arbitrator who shall be a former judge or justice with substantial experience in resolving business disputes with particular experience in resolving disputes involving computer software. The parties will share the costs of arbitration equally. Any court of competent jurisdiction may enforce the provisions of this Section. The arbitrator shall not be empowered to award damages in excess of, or inconsistent with, the liability limitations contained in this Agreement; however, the prevailing party shall 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.
Notices. All notices required to be sent hereunder shall be in writing and shall 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 Broadwin address shown on the relevant ORDER FORM (if to Broadwin).
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.
Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Broadwin's proprietary rights in the SOFTWARE, neither party may bring any action, regardless of form, arising from or relating to this Agreement more than two years after the cause of action has accrued.
Entire Agreement. This Agreement (together with any information from the ORDER FORM and License Files necessary to identify SOFTWARE that is the subject of this Agreement or further specific restrictions applicable to 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 shall be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement and any ORDER FORM issued by Broadwin shall supersede the terms in any ORDER FORM or other purchasing document submitted by Licensee; and the terms of any Licensee ORDER FORM or other purchasing document are expressly rejected to the extent inconsistent with the terms of this Agreement. Certain components of SOFTWARE may also be subject to a paper or electronic license agreement delivered by or on behalf of Broadwin concurrently herewith, the terms of which shall be supplemental hereto to the extent not inconsistent herewith. If a copy of this Agreement in a language other than English is included with SOFTWARE or DOCUMENTATION, it is included for convenience and the English language version of this Agreement shall control.
Third Party Intellectual Property Right Notices. The SOFTWARE may contain components that are owned by third parties and are incorporated into, or embedded in, SOFTWARE pursuant to license arrangements between Broadwin and such third parties (“Broadwin Licensors”). Broadwin Licensor components embedded in SOFTWARE may only be used by Licensee as a part of SOFTWARE under this Agreement, and may not be used by Licensee in any other fashion or for any other purpose. Copyright and other proprietary rights notices of Broadwin and Broadwin Licensors are contained in the Software, and Licensee shall not modify, delete or obfuscate any such notices.