GE Industrial Solutions WattStation Firmware License Agreement - Manual

June 29, 2012
GE WATTSTATION ™
Firmware License Agreement
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING THIS PACKAGE OR SIGNIFYING YOUR ACCEPTANCE BY
CLICKING THE APPROPRIATE DIALOG BOX. OPERATING THE WATTSTATION, CLICKING THE APPROPRIATE DIALOG BOX OR USING ANY PART OF
THE SOFTWARE SIGNIFIES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, PROMPTLY RETURN
THE WATTSTATION UNUSED ALONG WITH ANY OTHER RELATED ITEMS THAT WERE INCLUDED IN THE SAME ORDER FOR FULL CREDIT.
You, as the Customer, agree as follows:
1. DEFINITIONS
“GE” shall mean the General Electric Company business unit providing Licensed
Software to Customer pursuant to this Agreement, Industrial Solutions.
"GE Software" shall mean those portions of the Licensed Software owned by GE or GE
affiliates.
"Licensed Software" shall mean the software, in object code form only, supplied by GE
pursuant to this Agreement.
“Licensed Product” shall mean the Licensed Software and/or its accompanying
documentation.
“Third Party Software” shall mean those portions of the Licensed Software owned or
licensed by a third party, including but not limited to operating system code, that is
embedded within the Licensed Software.
2. LICENSE
2.1 Except as provided in section 2.2 below, you are granted a non-transferable,
nonexclusive license to use the Licensed Software only as embedded in or to be used on
a single GE hardware product. You may copy the Licensed Product, for backup purposes
only, in support of your use of the Licensed Software, limited to one copy. No other copies
shall be made unless authorized in writing by GE. You must reproduce and include all
applicable copyright notices on any copy. You may not reverse compile or otherwise
reverse engineer, or modify the Licensed Software. The Licensed Software, comprising
proprietary trade secret information of GE and/or its licensors, shall be held in confidence
by Customer and Customer shall not disclose it to third parties, unless disclosure is
required by law or legal process. In response to such legal requirements, the Customer
shall promptly notify GE in advance of such disclosure and reasonably cooperate in
attempts to maintain the confidentiality of the Licensed Software. No title to the intellectual
property is transferred. Licensed Software shall not be copied, reproduced, or used for
any other purpose outside of operation of the GE hardware, and shall not be used on any
other piece of hardware other than the GE hardware with which it was provided.
2.2 If you transfer the GE hardware product on which the Licensed Software is
used, you may transfer the Licensed Software to the end user of the hardware product
provided that the end user agrees to be bound by terms no less restrictive than the
provisions of this Agreement, and provided that all proprietary markings are maintained.
Any other transfer is void and automatically terminates this license. You shall use your
best efforts to enforce such agreement and shall promptly report any violation or
suspected violation to GE. In the event you do not enforce such agreement after a
breach, you shall, to the extent permissible by applicable law, grant GE the right to enforce
such agreement.
2.3 The Licensed Software may include Third Party Software licensed to GE. The
owner of the Third Party Software (the “Third Party”) and its licensors are intended third
party beneficiaries of this Agreement, and the provisions of this Agreement relating to the
Licensed Software, as the same incorporates Third Party Software, are made expressly
for the benefit of, and are enforceable by, the Third Party and its licensors. The Third
Party and its licensors retain ownership of all copies of the Third Party SoftwareThe
Licensed Software is warranted by GE in accordance with section 3.1 and the Third Party
does not provide an additional warranty. All Third Party Software included in the
Licensed Software is provided “AS IS” without warranty from the Third Party, and
each Third Party disclaims all warranties, either express or implied, including but
not limited to the implied warranties of merchantability, title, non-infringement or
fitness for a particular purpose with regard to the Third Party Software. The Third
Party shall not have any liability for special, indirect, punitive, incidental or
consequential damages.
2.4 In addition to the GE Software licensed above, GE may provide certain files
embedded in or to be used on the GE hardware product which may be subject to the
terms of the GNU General Public License (GPL) or the GNU Lesser General Public
License (LGPL), the current text of which may be found at: http://www.gnu.org , or another
open source license. The GE Software is proprietary software not subject to the GPL or
LGPL or other open source license, and Customer has no license to take any action, and
shall take no action, which would have the effect of subjecting the GE Software or any
portion of the GE Software to the terms of the GPL or LGPL or other open source license.
Customer may consult the user documentation for identifications and further information.
2.5 For the rights granted in this Agreement, Customer shall pay to GE the price for
the GE hardware product in which the Licensed Software is embedded
2.6
2.6 You understand that GE may, at any time and in its sole discretion, update or
modify the Licensed Product or discontinue updating and/or supporting the Licensed
Product. In the case of an update or modification, you agree to allow GE to automatically
install the Licensed Software on the GE hardware product on which the Licensed Software
is used. Any updated or modified Licensed Product made available and/or installed by GE
on the GE hardware product shall become part of the Licensed Software and subject to
this Agreement.
3. WARRANTY
3.1 GE warrants that the Licensed Software will be in substantial conformance with
GE’s standard published user documentation pertaining thereto as of the date of shipment
by GE and will be fit for the purpose of operating the GE hardware product on which it is
installed for a period of three (3) years from the date of manufacture (the “Warranty
Period”). If it is shown that the Licensed Software does not meet this warranty, your sole
and exclusive remedy will be for GE, in its sole discretion and to the extent permitted by
law, to (1) correct the defect or error in the Licensed Software, free of charge, or (2)
install replacement Licensed Software on the GE hardware product. If despite GE’s
reasonable efforts, non-conforming Licensed Software cannot be corrected or replaced,
GE shall refund or credit monies paid by you for the affected GE hardware product on
which the non-conforming Licensed Software is installed, and terminate the license with
respect to the Licensed Software. . Warranty correction or replacement by GE shall not
extend or renew the applicable Warranty Period. 3.2 THE
FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER
WARRANTIES WITH RESPECT TO THE LICENSED PRODUCT WHETHER WRITTEN,
ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OF
MERCHANTABILITY SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY.
4. LIMITATION OF LIABILITY
4.1 GE’S LIABILITY FOR ALL CLAIMS OF ANY KIND, WHETHER BASED ON
CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, FAILURE OF A REMEDY TO ACCOMPLISH ITS ESSENTIAL PURPOSE, OR
OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED
WITH, OR RESULTING FROM THIS AGREEMENT, OR THESE TERMS AND
CONDITIONS, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM
THE LICENSED PRODUCT OR ANY PART THEREOF, OR FROM ANY SERVICE
FURNISHED HEREUNDER (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL,
IN THE AGGREGATE, IN NO CASE EXCEED THE PRICE OF THE GE HARDWARE
PRODUCT IN WHICH IT IS EMBEDDED, WHICHEVER IS APPLICABLE, GIVING RISE
TO THE CLAIM. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION
OF THE WARRANTY PERIOD AS SET FORTH IN SECTION 3.
4.2 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY,
WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, FAILURE OF A
REMEDY TO ACCOMPLISH ITS ESSENTIAL PURPOSE, OR OTHERWISE, SHALL GE,
ITS EMPLOYEES OR SUPPLIERS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT
LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY,
COST OF CAPITAL, COST OF PURCHASED POWER, COST OF SUBSTITUTE
EQUIPMENT, FACILITIES, OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF
CUSTOMERS AND TRANSFEREES OF THE CUSTOMER FOR SUCH DAMAGES
EVEN IF GE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
THE CUSTOMER WILL INDEMNIFY GE, ITS EMPLOYEES AND SUPPLIERS AGAINST
ANY SUCH CLAIMS FROM THE CUSTOMER’S CUSTOMERS. IF THE LICENSED
PRODUCT WILL BE FURNISHED BY THE CUSTOMER TO A THIRD PARTY BY
CONTRACT OR RELATE TO A CONTRACT BETWEEN THE CUSTOMER AND A
THIRD PARTY, THE CUSTOMER SHALL OBTAIN FROM SUCH THIRD PARTY A
PROVISION AFFORDING GE AND ITS SUPPLIERS THE PROTECTION OF THIS
SUBSECTION AND THE PRECEDING SUBSECTION.
4.3 The Licensed Product is not intended for use in any nuclear facility or
application, or any life-support equipment or other application where failure of the products
could lead directly to death, personal injury or severe physical or environmental damage.
If so used, GE disclaims all liability for any damages arising as a result of the hazardous
nature of the application in question, including but not limited to nuclear or environmental
damage, injury or contamination, and Customer shall indemnify, hold harmless and defend
GE, its officers, directors, employees and agents against all such liability, whether based
on contract, warranty, tort (including negligence), strict liability, or any other legal theory,
regardless of whether GE had knowledge of the possibility of such damages.
4.4 If GE furnishes Customer with advice or other assistance concerning any
products or systems which is not required pursuant to this Agreement, the furnishing of
such advice or assistance will not subject GE to any liability, whether in contract,
indemnity, warranty, tort, (including negligence), strict liability or otherwise.
5. INDEMNITY
5.1 GE warrants that the GE Software shall be delivered free of any rightful claim of
any third party for infringement of any United States patent or copyright. If promptly
notified in writing and given full authority, information and assistance, GE 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 warranty, and GE shall pay all
damages and costs finally awarded therein against Customer due to such breach, other
than damages and costs arising from any willful infringement by Customer after receipt of
notice of the claimed infringement. GE shall not be responsible for any compromise or
concession made by Customer without GE’s prior written consent. In case the GE
Software is in such suit held to constitute such an infringement and its use for the purpose
intended for such software is enjoined, GE shall, at its expense and option, either procure
for Customer the right to continue using said software, or replace same with non-infringing
software, or modify same so it becomes non-infringing, or terminate the license to the GE