JSteam

NOTICE: PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE ACCOMPANYING THIS AGREEMENT. BY INSTALLING, ACCESSING, COPYING OR USING THE SOFTWARE YOU ARE DEEMED TO HAVE READ AND AGREED TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.

IF YOU ARE NOT AUTHORISED TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT INSTALL, ACCESS, COPY OR USE THE SOFTWARE, AND YOU MUST IMMEDIATELY DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORIES AND STORAGE MEDIA ALL COPIES OF THE SOFTWARE AND DOCUMENTATION, AND TO OBTAIN A REFUND (IF APPLICABLE), YOU MUST NOTIFY LICENSOR IN WRITING THAT YOU HAVE COMPLIED WITH THE FOREGOING.

This End-User License Agreement (the Agreement), effective as of the date you accept the terms hereof (unless returned as specified above), (the Effective Date), is entered into between Control Engineering with an address of Auckland, New Zealand (Licensor) and you (Licensee). This Agreement applies to the Demo Version, Evaluation Version and Full Version of the Software (as described in clause 2.1).

The parties agree as follows:

1. DEFINITIONS

Confidential Information means all information contained in or relating to the Software and the Documentation.

Demo Version means the demonstration version of the Software described in clause 2.1(a).

Documentation means the user guide, help information and/or other documentation provided by Licensor with the Software.

Evaluation Version means the evaluation version of the Software described in clause 2.1(b).

Full Version means the complete version of the Software described in clause 2.1(c).

Software means any Licensor computer program (in object code) accompanying this Agreement, which is licensed as a Demo Version, Evaluation Version or Full Version.

Support Services has the meaning set out in clause 3.1.

Update means, if applicable, any patch, update or new version of the Full Version of the Software delivered to Licensee pursuant to the Support Services.

2. LICENSE

2.1 Software Version. The following Software versions may be licensed under this Agreement:

(a) Demo Version: A trial version of the Software with reduced functionality which is licensed at no charge and which is not supported by Licensor. Licensee may at any stage upgrade this version to an Evaluation Version or purchase a Full Version by notifying Licensor.

(b) Evaluation Version: A trial version of the Software with full functionality which is licensed at no charge and which is not supported by Licensor. This version is licensed for a period of 30 days only, commencing from requesting an evaluation license. On expiry of the ’30 day’ period, this version will revert to a Demo Version of the Software, unless a Full Version is purchased by Licensee prior to or on such expiry.

(c) Full Version: A complete version of the Software which is licensed subject to payment of the applicable licence fee and which is supported by Licensor on the terms of this Agreement.

2.2 Software Licence: Subject to all terms and conditions in this Agreement, Licensor grants Licensee a non-exclusive, non-transferable, non-sublicenseable right and license to use, without modification:

(a) the Demo Version of the Software and the Documentation, during the term of this Agreement;

or

(b) the Evaluation Version of the Software and the Documentation, for a period of 30 days only from the date of installation of the Evaluation Version;

or

(c) the Full Version of the Software and the Documentation, during the term of this Agreement, as applicable.

2.3 Use of Software. Licensee may use the Demo Version of the Software for non-commercial purposes only and only to evaluate whether it wants to purchase the Full Version of the Software. Licensee may use the Full Version or Evaluation Version of the Software solely for Licensee's internal business purposes.

2.4 Limitations.

(a) Licensee may install the Demo Version or Evaluation Version of the Software on one (1) computer only, provided that the computer is owned by, or under the complete control of, Licensee.

(b) Licensee may install the Full Version of the Software on one (1) computer, provided that the computers are (a) node-locked via a MAC address and (b) owned by, or under the complete control of, Licensee.

2.5 License Control. Licensee acknowledges that the Software may contain code or require devices that: (a) detect or prevent unauthorised use of the Software; or (b) disables any or all functionality of the Software.

3. SUPPORT SERVICES

3.1 Support. In respect of the Full Version of the Software, for a period of 12 months from the Effective Date (the Support Period) Licensor will, at no charge to Licensee, use commercially reasonable efforts to provide Licensee with Software maintenance and support in accordance with its standard practices (as may be amended from time to time) (the Support Services) up to a maximum of 10 hours during the Support Period. If Licensee requires (a) more than 10 hours of Support Services during the Support Period, or (b) the provision of Support Services following expiry of the Support Period, then Licensor may charge for the Support Services in accordance with its then current policies. Licensor shall have no obligation to support any version other than the then current and immediate prior Full Version of the Software. Support Services will be provided by Licensor via email or such other means it considers appropriate. Licensee agrees that Licensor may charge in accordance with its then current policies for any Support Services resulting from (a) problems, errors or inquiries relating to any hardware, system, service or other software or (b) use of any unsupported Full Version of the Software.

3.2 Updates. In respect of the Full Version of the Software, Licensor will provide Licensee with any Update that it makes generally available to its other licensees which have purchased the same level of support. Any Update delivered by Licensor shall be treated as Software for all purposes under this Agreement.

3.3 Full Version. Licensee acknowledges and agrees that clauses 3.1 and 3.2 only apply in respect of the Full Version of the Software, and that no Support Services or Updates will be provided for the Demo Version and Evaluation Version of the Software.

4. PROPRIETARY RIGHTS

4.1 Restrictions. Licensee shall not (a) use any Confidential Information to create any software or documentation that is similar to any Software or Documentation, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Software, (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Software or Documentation , (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Software or Documentation, (e) use the Software, or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of New Zealand or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts.

4.2 No Implied License. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and Licensor (and its suppliers) shall retain all right, title and interest in and to the Software and Documentation (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).

4.3 Markings. Licensee shall not alter, obscure or remove any trademark, patent notice or other proprietary or legal notice displayed by or contained in any Software, Documentation or packaging.

4.4 Third Party Software. The Software may operate or interface with software or other technology (the In-Licensed Code) that is in-licensed from, and owned by, third parties (the Third Party Licensors). Licensee agrees that (a) it will use In-Licensed Code in accordance with this Agreement and any other restrictions specified in the applicable license set forth or referenced in the Documentation, (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the In-Licensed Code or Software and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee's use of the In-Licensed Code.

5. WARRANTY DISCLAIMERS

TO THE FULLEST EXTENT PERMITTED BY LAW, THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION OR SUPPORT SERVICES WILL MEET LICENSEE'S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

6. LIMITATION OF LIABILITY

IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SUPPORT SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID BY LICENSEE TO LICENSOR FOR THE SOFTWARE OR SUPPORT SERVICES THAT GAVE RISE TO THE CLAIM DURING THE PRIOR 12-MONTH PERIOD (OR WHERE NO AMOUNTS ARE PAYABLE FOR THE SOFTWARE AND SUPPORT SERVICES, IN EXCESS OF NZ$100), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

7. TERM AND TERMINATION

7.1 Term. This Agreement shall commence on the Effective Date and continue in effect until terminated as provided herein.

7.2 Termination. Licensee may terminate this Agreement at any time for its convenience upon at least 30 days’ prior written notice to Licensor. This Agreement shall automatically terminate immediately upon any material breach by Licensee of any limitation or restriction set forth in Section 2.4.

7.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return or destroy all Software, Documentation and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 4 (Proprietary Rights), 5 (Warranty Disclaimers), 6 (Limitation of Liability), 8 (General Provisions) and this Section 7 shall also survive.

8. GENERAL PROVISIONS

8.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee's purchase order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

8.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New Zealand, without regard to its conflicts of law provisions.

8.3 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 4, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

8.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognised express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices shall be delivered to the address specified by Licensee when the Software was ordered, or to the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.

8.5 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor's prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee's consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.

8.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

8.7 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) this Agreement has the same force and effect as a signed agreement, (c) Licensor requires identification of the Licensee before issuing this license, and (d) issuance of this license does not constitute general publication of the Software, Documentation or any other Confidential Information.