GE Fanuc Automation North America, Inc. | GFJ±317C |
Software License Agreement |
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YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING THIS PACKAGE. OPENING THIS PACKAGE SIGNI- FIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, YOU SHOULD PROMPTLY RETURN THE PACK- AGE UNOPENED ALONG WITH ANY OTHER ITEM THAT WAS INCLUDED IN THE SAME CATALOG NUMBER FOR FULL CREDIT.
You, as the Customer, agree as follows:
1. DEFINITIONS
ºApplication Softwareº shall mean those portions of the Licensed Software, in object code form only, createdby GE Fanuc.
ºDesignated Computerº shall mean the one (1) computer upon which Customer shall run the Li- censed Software.
ºLicensed Softwareº shall mean the Application Software plus any other software, in object code form only, supplied by GE Fanuc pursuant to this Agreement. The Licensed Software may include third party software, including but not limited to operating systems, licensed to GE Fanuc. If no oper- ating system software is included in the software provided under this Agreement, you must make provision for any required operating system software licenses.
2.LICENSE
2.1Exceptas provided in section 2.2 below, you are granted only a personal, non±transfer- able, nonexclusive license to use the Licensed Software only on the Designated Computer. You may copy the Licensed Software into machine readable form for backup purposes in support of your use of the Licensed Software on the Designated Computer, limited to one copy. No other copies shall be made unless authorized in writing by GE Fanuc. You may not reverse compile or disassemble the software. The Licensed Software, comprising proprietary trade secret information of GE Fanuc and/ or its licensors, shall be held in confidence by Customer and protected from disclosure to third par- ties. No title to the intellectual property is transferred. You must reproduce and include all applicable copyright notices on any copy.
2.2IfyouareanauthorizedGEFanuc distributor or an Original Equipment Manufacturer who incorporates theLicensedSoftware into your equipment for sale to an end user, you may transfer the LicensedSoftware to an end user provided that the end user agrees to be bound by the provisions of this Agreement.
2.3GEFanuc's licensors having a proprietary interest in the Licensed Softwareshallhavethe right to enforce such interests, including the right to terminate this Agreement in the event of a breach of its terms pertaining to such proprietary interests.
2.4EXCEPTASPROVIDEDINSECTION2.2ABOVE,IFYOUTRANSFERPOSSESSIONOFANY COPYOFTHELICENSEDSOFTWARE TO ANOTHER PARTYWITHOUTWRITTENCONSENTOFGE FANUC,YOUR LICENSE IS AUTOMATICALLYTERMINATED. Any attempt otherwise to sublicense, assign or transfer any of the right, duties or obligations hereunder is void.
2.5If the Licensed Software is being acquired on behalf of the U.S. Government,Department
ofDefense,theLicensedSoftware is subject to ºRestricted Rightsº, including the legend to be affixed to the software as set forth in DOD Supplement to the FederalAcquisitionRegulations(DFAR's) para- graph 252.227±7013(c)(1). If software is being acquired on behalf of any other U.S. Government entity, unit or agency, the Government's rights shall be as defined in paragraph 52.227±19(c)(2) of the Federal Acquisition Regulations(FAR's).
3.WARRANTY
3.1GE Fanuc warrants that the Application Software will be in substantial conformance with the specifications in the manual pertaining thereto as of the date of shipment by GE Fanuc. If, within ninety (90) days of date of shipment, it is shown that the Application Software does not meet this warranty,GEFanuc will, at its option, either correct the defect or error in the Application Software,free ofcharge,ormakeavailabletoCustomersatisfactory substitute software, or,asalastresort, return to Customerallpaymentsmadeaslicensefeesandterminate the license with respect to the Application Softwareaffected. GEFanuc does not warrant that operation of the Application Software will be unin- terrupted or error free or that it will meet Customer's needs. All other portions of the Licensed Soft- ware are provided ºas isº without warranty of any kind.
3.2WITHRESPECTTOTHESOFTWAREWHICHISTHESUBJECTOFTHISAGREEMENT,THE FOREGOINGWARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHERWRITTEN,ORAL,IMPLIEDORSTATUTORY.NOIMPLIEDORSTATUTORYWARRANTYOF MERCHANTABILITYORFITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
4.LIMITATION OF LIABILITY
4.1INNOEVENT, WHETHER AS A RESULTOFBREACHOFCONTRACT, BREACH OF WAR- RANTY,TORT(INCLUDINGNEGLIGENCE)OROTHERWISESHALLGEFANUCORITSSUPPLIERSBE LIABLEFORANYSPECIAL,CONSEQUENTIAL,INCIDENTALORPENALDAMAGESINCLUDING,BUT NOTLIMITEDTO, LOSSOFPROFITORREVENUES,LOSSOFUSEOFTHELICENSEDSOFTWAREOR ANY PARTTHEREOF, OR ANY ASSOCIATEDEQUIPMENT, DAMAGE TO ASSOCIATEDEQUIPMENT, COSTOFCAPITAL,COSTOFSUBSTITUTEPRODUCTS,FACILITIES,SERVICESORREPLACEMENT POWER,DOWNTIMECOSTS,ORCLAIMSOFCUSTOMER'SCUSTOMERSANDTRANSFEREESFOR SUCHDAMAGESEVENIFGEFANUCHASBEENADVISEDOFTHEPOSSIBILITYOFSUCHDAMAGES.
4.2EXCEPTASPROVIDEDINSECTION5,INDEMNITY,INNOEVENT,WHETHERASARESULT OF BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDINGNEGLIGENCE)OROTHERWISE, SHALLGE FANUC'S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTINGFROMTHISAGREEMENT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM THE LICENSEDSOFTWARE OR ANY PART THEREFORE, OR FROM ANY SERVICEFURNISHEDHERE- UNDER,EXCEEDTHEQUOTEDCHARGESFORTHELICENSEDSOFTWARE. ANYSUCHLIABILITY SHALLTERMINATEUPONTHETERMINATIONOFTHEWARRANTYPERIODASSETFORTHINSEC- TION 4.
4.3IfGEFanuc furnishes Customer with advice or other assistance which concerns Licensed Software or any portion thereof supplied hereunder or any system or equipment on which any such softwaremay be installed and which is not required pursuant to this Agreement, the furnishing of such adviceor assistance will not subject GE Fanuc to any liability, whether in contract, warranty, tort, (in- cluding negligence) or otherwise.
4.4The products to be licensed or sold hereunder are not intended for use in any nuclear, chemical or weapons production facility or activity, or other activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage. If so used, GEFanuc disclaims all liability for any damages arising as a result of the hazardous nature of the busi- ness in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination,andCustomershallindemnify,holdharmlessanddefendGEFanuc, its officers, direc- tors, employees and agents against all such liability, whether based on contract, warranty, tort (in- cludingnegligence), or any other legal theory, regardless of whether GE Fanuc had knowledge of the possibility of such damages.
5.INDEMNITY
5.1GE Fanuc warrants that the Application Software shall be delivered free of any rightful claim for infringement of any United States patent or copyright. If notified promptly in writing and given authority, informationandassistance,GEFanuc shall defend, or may settle, at its expense, any suit or proceeding against Customer so far as based on a claimed infringement which would result in a breach of this warrantyandGEFanuc shall pay all damages and costs awarded therein against Cus- tomer due to such breach. In case the Application Software is in such suit held to constitute such an infringementanditsuseisenjoined,GEFanucshall,atitsexpenseandoption, eitherprocureforCus- tomer the right to continued use, or replace same with a non±infringing product or part, or modify the Application Software so that it becomes non±infringing, or remove the software and refund the li- censecharge pertaining thereto (less reasonable depreciation for any period of use) and any trans- portationcosts separately paid by Customer. The foregoing states the entire liability of GE Fanuc for patent and copyright infringement by the Licensed Software or any part thereof.
5.2The indemnity under the preceding paragraph shall not apply to any use of Application Software in conjunction with any other product in a combination not furnished by GE Fanuc as a part of this transaction. As to any such use in such combination, GE Fanucassumesnoliabilitywhatsoev- er for patent and copyright infringement and Customer will hold GE Fanuc harmless against any in- fringement claims arising therefrom.
6.TERM AND TERMINATION
6.1You may terminate the license granted hereunder at any time by destroying the Licensed Software together with all copies thereof and notifyingGEFanuc in writing that all use of the Licensed Software has ceased and that same has been destroyed.
6.2GEFanuc, upon thirty (30) days notice, may terminatethisAgreementoranylicensehere- under if Customer fails to perform any obligation or undertaking to be performed by it under this Agreementor if Customer attempts to assign this Agreement without the prior written consent of GE Fanuc. Within twenty (20) days after any such termination of this Agreement, Customer shall certify in writing to GE Fanuc that all use of the Licensed Software has ceased, and that same has been re- turned or destroyed, in accordance with GE Fanuc's instructions.
6.3Sections 4, 6 and 7 of this Agreement shall survive any expiration or termination and remain in effect. TerminationofthisAgreementoranylicensehereundershallnotrelieveCustomerof its obligation to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges previously paid.
7.EXPORT
7.1If you intend to export (orreexport), directly or indirectly, the software products or techni- cal information relating thereto supplied hereunder or any portion thereof, it is your responsibility to assure compliance with U.S. export control regulations and, if appropriate, to secure any required export licenses in your own name.
8.GENERAL
8.1ThisAgreement shall be governed by the laws of the State of Virginia, without regard to its conflict of law provisions. The provisions of the United Nations Convention on the InternationalSaleof Goods shall not apply to this Agreement.
Shouldyou have any questions concerning this Agreement, you may contact GE Fanuc by writiing to:
GE Fanuc, P.O. Box 8106, Charlottesville, VA 22906.
YOUACKNOWLEDGETHAT YOU HAVEREADTHISAGREEMENT,UNDERSTAND IT AND AGREE TO BEBOUND BY ITS TERMS AND CONDITIONS. YOUFURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVESTATEMENT OF THE AGREEMENT BETWEEN US AND SUPERSEDES ANY PRO- POSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONSBE- TWEENUSRELATINGTOTHESUBJECTMATTEROFTHISAGREEMENT.FURTHER,NOCHANGEOR AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENTSIGNED BY A DULY AUTHORIZEDREPRESENTATIVEOFGEFANUC.