Power Analytics Corporation
Software End User License Agreement
This Power Analytics Corporation End-User Software Subscription License Agreement (“EULA”) is a legal agreement between you (either an individual or single entity (hereafter referred to as “Licensee”) and Power Analytics Corporation (hereafter referred to as “Licensor”) for the applicable software suite (as identified on Licensor’s website) and its associated databases, device drivers, configuration files, and any printed materials which may include online or electronic documentation (collectively the “Software Product”). By installing, arranging for the installation of, opening the packaged software CD, or otherwise using the Software Product, Licensee agrees to be bound by the terms of this EULA. If Licensee does not agree to all of the terms of this EULA, Licensee is not authorized to install or use the Software Product and should click the “I do not accept” option during installation, delete all copies of the software installation programs, and return any packaged software, whether opened or unopened, to Licensor at the location below within seven (7) days of the date of purchase: Power Analytics Corporation 8521 Six Forks Rd, Forum II Suite 110 Raleigh NC 27615 USA
SOFTWARE PRODUCT LICENSE
The Software Product is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties. The Software Product is a subscription license and is not being sold hereunder. No ownership rights to the Software Product are conveyed under this Agreement. 1. GRANT OF LICENSE Subject to payment of the applicable subscription license and other fees, Licensor grants Licensee a nonexclusive, nontransferable license (“License”) to install and use the Software Product in a manner consistent with related documentation. If the Software Product and related License is intended to be used at a specific location (hereinafter a “Site”), the Software Product shall be used solely in the designated location. No right, title, or interest in the Software Product is transferred in granting this license. The Software Product may be licensed pursuant to a software license agreement (“Software License Agreement”) between Licensor and a third-party reseller (“Licensor’s Agent”). In such instances, the License granted hereunder is subject to the terms of this EULA and the Software License Agreement. 2. RIGHTS AND LIMITATIONS Licensee’s rights and limitations in the use of the Software Product are governed by the type of license purchased and the number of concurrent users included with such license or subscription. Licensee’s installation and usage rights are limited as follows: * Single User License: If Licensee has purchased a single user license, Licensee solely: (i) only at the Site(s) and on a single computer or a server at the Site, or (ii) on a portable computer designated for exclusive use by one or more of Licensee’s permanent employees assigned to such Site for use in the field or for site visits. If the Software Product is installed on a server, access to the server must be limited to permitted employees located at the Site. The Software Product may be accessed and used only by a single concurrent user. Multiple users may access the Software Product, provided, however, only one user may access the Software Product at any one time.
* Multiple User License: If Licensee has purchased a multiple user license, Licensee may install and use the Software Product: (i) on a server located at any Site solely accessible by permitted employees assigned to the Site, or (ii) on one or more computers designated for exclusive use at the Site by one or more of Licensee’s permitted employees, or if used in the field or for site visits, then only by permitted employees assigned to the Site. The Software Product may be accessed and all copies collectively used only by the number of concurrent users specified in Licensee’s Software Purchase Agreement.
* Server License: If Licensee has purchased a server license, Licensee may install and use the Software Product only on a single, separate server or designated virtual server with a unique MAC address as provided to POWER ANALYTICS located at the Site. Access to the server must be limited to permitted employees located at the Site.
* Enterprise License: If Licensee has purchased an enterprise license, Licensee may install and use the Software for the designated enterprise.
* Annual Subscription License: If Licensee has purchased an Annual subscription (Valid for 365 days), the terms are the same as above for single user license, multiuser license and server license options.
* Monthly Subscription: If Licensee has purchased a monthly subscription (e.g. DesignBase Xi), Licensee may install and use the Software Product on a monthly basis, with one license use for one user and not to be utilized amongst multiple users. For the avoidance of doubt, Licensee may not use a single cloud or virtualized version of Software Product as a site license shared among multiple users.
* Transactional Subscription: If Licensee has purchased a License to a Software Product that utilizes messages, packets, grid elements of points that determine pricing on a re-occurring basis, Licensee agrees to both auditing and payment terms per the applicable Software Licensing Agreement. Licensee understands that Licensor retains the rights to identify, measure, communicate, resell and cross-license the analytical information from certain Software Product(s).
* Product Installation: Software Products may be installed on any number of servers at any of the Sites (real and virtual but each with a unique MAC address as provided in the valid license key), and, if used in the field, on any number of portable computers. Access to the servers and portable computers with Software Product installations must be limited to permitted employees of Licensee at the Site.
* Modifications: Licensee may not modify, translate, reverse engineer, decompile, disassemble, or reconfigure the Software Product or create derivative works based on all or any part of the Software Product, except and only to the extent that such activity is permitted expressly by Licensor, or by applicable law notwithstanding this limitation.
* Transfers: Licensee may not rent, distribute, assign, lease, sublicense, or transfer all or part of the Software Product or any rights granted hereunder to any other person or entity except as allowed by subscription service.
* Marks: Licensee may not remove any proprietary notices, labels, or marks from the Software Product without the prior written consent of Licensor.
* Domain: Licensee may not use the Software outside of, or access the Software from, the country in which it was purchased, or at any Sites not expressly permitted under this agreement, without the prior written consent of Licensor.
* Intended use: Licensee may not utilize the Software Product for any purpose other than as set forth in this Agreement and its documentation without the prior written consent of Licensor.
3. PAYMENTS FOR SUBSCRIPTION Licensee hereby agrees to make to Licensor all payments of the applicable subscription license and other fees on time and in full as set forth on the Licensor’s website or rate sheet for the Software Product licensed hereunder. Upon receipt of each applicable payment, Licensor shall deliver to Licensee an authorization code for: (i) the activation of the Software Product in the first License year, or (ii) the continued activation of the Software Product upon its automatic annual renewal. The License granted hereunder is valid for one year and automatically renews for successive one-year periods, unless the Licensee provides written notice of termination at least thirty (30) days prior to the end of a one-year term. The activation code for the Software Product will expire on the next payment due date. Licensor shall have the right to withhold the authorization code at any time that Licensee has failed to make a payment in full upon the renewal date; provided, however, that Licensor agrees to provide Licensee notice of non-payment to limit the possibility of unanticipated termination of service. If notice is provided to Licensee and payment remains outstanding over forty five (45) days past due, the Licensor has the right to immediately terminate access to the Software Product. . Upon delivery of payment in full for the applicable Software Product, Licensor may provide a new license key (if appropriate) or simply renew the license, subject to the termination rights set forth below.
4. UPGRADES AND UPDATES If this Software Product subscription is being licensed as an upgrade or update to previously licensed software products, Licensee may retain one (1) prior version of the Software Product for back-up purposes only. Licensee must destroy all other past versions of the Software Product including any copies resident on Licensee’s servers and hard drives, within thirty (30) days of the purchase of the license to use the upgrade or update, except as required to ensure continuity of power model quality assurance providing that Licensee has notified Licensor of the requirement and that a commercially and technically viable solution to power model conversion is not available and that Licensor is in agreement to the exception.
5. INTELLECTUAL PROPERTY Licensee acknowledges and agrees that the Software Product is being licensed to Licensee, not sold, and that other than the limited license granted herein, Licensee shall have no right, title or interest in or to the Software Product. All title, intellectual property rights, and copyrights in and to the Software Product (including but not limited to source code, images, renderings, icons, animations, one lines, database structure, monitoring parameters, device drivers, audio, and “applets” and “widgets” incorporated into the Software Product), including any copies made by Licensee, are owned by and remain with Licensor. The Software Product is protected by copyright laws and international treaty provisions. Therefore, Licensee must treat the Software Product like any other copyrighted material except that Licensee may either (a) make copies of the Software Product solely for backup or archival purposes, or (b) transfer the Software Product to a single hard disk provided that Licensee keeps the original solely for backup or archival purposes, which shall be held as the confidential information of Licensor and otherwise in accordance with this agreement. Licensee may not copy the printed materials in the Software Product. Any derivative works created by the Licensee derived from, integrated with or using any POWER ANALYTICS PRODUCT, in whole or in part, shall be the sole and exclusive property of POWER ANALYTICS and POWER ANALYTICS shall be the sole owner of any and all intellectual property rights related thereto. POWER ANALYTICS reserves all rights not expressly granted herein.
6. EXPORT RESTRICTIONS Licensee agrees that the Software Product will not be exported outside the United States except as authorized and permitted by the laws and regulations of the United States. If the Software Product has been rightfully obtained by Licensee outside the United States, then Licensee agrees that Licensee will not re-export the Software Product except as permitted by the laws and regulations of the United States, and the laws and regulation of the jurisdiction in which Licensee obtained the Software Product. Licensee agrees to comply with all applicable national laws and international treaties that apply to the Software Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States and other governments.
7. US GOVERNMENT – RESTRICTED RIGHTS The Software Product is provided with RESTRICTED RIGHTS for US Government customers. Use, duplication or disclosure by the US Government is subject to restrictions as set forth in FAR 52.227-19 (Commercial Computer Software – Restricted Rights) and FAR 252.227-7013 (c) (1) (ii) (Rights in Technical Data and Computer Software), as applicable. Manufacturer is Power Analytics Corporation, 8521 Six Forks, Forum II, Suite 110, Raleigh, NC 27615.
8. DISCLAIMER Licensor’s Software Products are tools intended to be used by trained professionals only. They are not substitutes for Licensee’s professional judgment. Licensor’s Software Products are intended to assist with design, analysis, and optimal usage of electrical power systems and products and are not substitutes for independent testing of product and system stress, safety, and utility. Due to the large variety of potential applications for the Software Products, the Software Products have not been tested in all situations under which they may be used. Licensor shall not be liable in any manner whatsoever for the results obtained using the Software Products. Persons using the Software Products are responsible for the supervision, management, and control of the Software Products. This responsibility includes, but is not limited to, the determination of appropriate uses for the Software Products and the selection of the software and other programs to achieve intended results. Persons using the Software Products are also responsible for establishing the adequacy of independent procedures for testing the reliability and accuracy of any program output, including any items or systems designed and analyzed using the Software Product.
9. THIRD PARTY SOFTWARE The Software Product may include certain open source or publicly available software, libraries, or tools for which different licensing terms apply. The open-source software is licensed directly to you pursuant to the public licenses associated with such software. Licensee will not cause the Software Product or any derivatives to become subject to any additional license obligations with respect to any open-source software. Licensee will comply with all open-source licensing terms and conditions as described in the “About” window of the Software Product or in any pop-up windows shown during the installation process. The licensors of all third-party software included with the Software Product retain ownership rights in such software. Licensee may not utilize any third party software, sourced by Licensee, or provided by third parties in combination with the Software Product without the express written permission of Licensor. Failure to comply with this provision will immediately void the Software Product License and Licensor will be indemnified and held harmless by Licensee for any and all damages resulting from the use of unauthorized third party software or unlicensed integrators.
10. CUSTOMER REMEDIES Licensor’s entire liability and Licensee’s exclusive remedy shall be at Licensor’s option to either: (a) provide a return of the License price paid by Licensee to Licensor, or (b) repair or replace the Software Product that does not meet Licensor’s Limited Warranty, and which is returned with a copy of Licensee’s receipt of purchase. Any replacement of the Software Product will be warranted for the remainder of the original warranty period or thirty (30) days whichever is longer.
11. TERMINATION This EULA is effective until terminated. Without prejudice to any other rights, Licensor may terminate this EULA if Licensee fails to comply with the terms and conditions herein. In addition, Licensor may terminate this EULA or the Software Maintenance Services at any time after notice of non-payment is provided to Licensee and such payment remains outstanding for more that forty-five (45) days. In the event of termination of its rights under the EULA, Licensee must immediately cease using the Software Product and also must, at Licensor’s discretion, return or destroy all copies of the Software Product and all component parts, including any copies made by Licensee, within ten (10) days of the date of termination. Upon any termination of the Software Maintenance Services, Licensee may continue use of the Software Product (subject to full satisfaction of its obligations under this EULA with respect to such license), but Licensor shall have no further obligations with respect to the support or maintenance of such Software Product.
12. LIMITED WARRANTY Licensor warrants that the Software Product will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of Licensee’s receipt of software. This limited warranty is void if the Software Product, as installed and configured on behalf of Licensee, is modified by any party other than Licensor or its assigns, or if an apparent failure of the Software Product has resulted from accident, abuse, or misapplication. Licensor shall have sole authority to determine whether warranty requests result from modifications to the Software Product.
13. NO OTHER WARRANTIES EXCEPT FOR THE ABOVE LIMITED WARRANTY, AND TO THE MAXIMUM EXTENT POSSIBLE PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL OTHER WARRANTIES EITHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATIONS WITH LICENSEE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE PRODUCT. LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
14. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER ARISING FROM TORT OR CONTRACT, (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES THAT THE LICENSE FEE REFLECTS THIS ALLOCATION RISK. IN NO EVENT SHALL LICENSOR’S LIABILITY UNDER THIS LICENSE EXCEED THE AMOUNT PAID FOR THE SOFTWARE SUBSCRIPTION DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
15. GOVERNING LAW This EULA shall not be governed by the 1980 U.N. Convention on Contracts for the Sale of Goods; rather this EULA shall be governed by the laws of the State of North Carolina, USA.
16. ACCEPTANCE; ENTIRETY OF AGREEMENT Installation of the Software Product constitutes acceptance of this EULA in its entirety. Licensee will confirm this acceptance when Licensee presses the “I Agree” button (or equivalent) in the EULA terms and conditions dialog presented by the Software Product during installation, or, if Licensee has contracted Licensor or an authorized third party to install the software, by that party’s selection of the Agree button. This EULA, including all schedules, exhibits, attachments and addenda, constitutes the entire agreement between the parties with respect to Licensee’s use of the Software Products. This EULA may not be amended except as set forth in a writing executed by each of the parties. Licensee may issue a purchase order or other documentation in connection with its purchase of the Software Products; provided however that Licensee’s use of and rights to the Software Products are governed solely by this EULA and any pre-printed or other terms of such purchase order are hereby rejected by Licensor and hereby deemed null, void and of no effect, even if such purchase order is executed by Licensor.
17. SEVERABILITY If any of the provisions of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way.
18. SAFETY-RELATED USERS If Licensee has subscribed a Software Product designated as a Safety Release, or will be using the Software Product for safety- related purposes such as arc flash analyses, additional rights and restrictions may apply. Please refer to any Addendums to this agreement and to any additional terms and conditions stated in your accepted Safety-Related Software Purchase Order.