Sensia End User License Agreement

SENSIA END USER LICENSE AGREEMENT 

IMPORTANT READ THIS AGREEMENT CAREFULLY 

This end user license agreement (“EULA”) is a legal contract between You (either an individual or a single entity) and Sensia, Inc. (“Sensia”) for the Software product(s) and Documentation that Sensia licenses to You. SENSIA IS WILLING TO LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS EULA. YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE WITH ALL ACCOMPANYING ITEMS TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, OR IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT. 

In connection with this EULA, you may also have agreed to be bound by the Sensia General Terms and Conditions of Sale (“General Terms”) and any other Product-Specific Terms, as that term is defined in the General Terms.

  1. DEFINITIONS 
    1. Activation Certificate: means a document included with the Software that may provide, among other things, Your Software Activation Key and specific information regarding the License Type and License Term. 
    2. Activation Key: means the alphanumeric code that enables You to activate and use the Software. 
    3. Affiliates: means an entity that is directly or indirectly controlled by or is under common control with such party, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity. 
    4. Capacity: means a specific licensed size criteria as described on the Activation Certificate and includes, among other measurements, equipment count, I/O count, platform counts, session count, tag counts, screen counts, Equipment counts and processor counts. 
    5. Client: means a Device running, accessing or utilizing, directly or indirectly, the Server Software. 
    6. Cloud Services: means hosted, cloud-based services made available by Sensia for the access and use of certain Software and other services, as described in an Order and/or Activation Certificate. 
    7. Complementary Software: means samples, utilities, plug-ins, user interface components and/or reports that are generally not included in a default Software installation, but are provided as an accommodation to You. 
    8. Confidential Information means: (i) the Software and Documentation; (ii) the technology, ideas, know-how, documentation, processes, algorithms and trade secrets embodied in the Software; (iii) any software keys related to the Software; and (vi) any other information in written or electronic media that is identified as “confidential,” “proprietary” or with a similar legend at the time of such disclosure. 
    9. Data: means information or data obtained, received or collected from Your usage of the Software. 
    10. Designated Location: Means the site, Equipment and/or application owned and operated by You as designated by Sensia in the Activation Certificate or other agreement between the parties. 
    11. Device: means any physical or virtual environment, node, server, computer, or other digital workstation, electronic, cellular, or computing equipment that runs, accesses, or utilizes the services of the Software. 
    12. Documentation: means the then-current documentation regarding the Software that is generally provided or made available to You by Sensia either in print or electronic, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Software. 
    13. Equipment: means any physical asset, subcomponent or grouping thereof. 
    14. EULA: means this end user license agreement. 
    15. Feature: means an add-on functionality and libraries to the Software. 
    16. Interpretations, Recommendations and Well or Reservoir Descriptions: means the processing, review and analysis of data, the making of models, workflows, estimates, descriptions, and simulations using data, and the recommending of an action or set of actions based on the foregoing. 
    17. License Term: means the time duration of the Software license as specified in the Activation Certificate or other agreement between the parties. For a Cloud Service, the License Term will be for the duration of the Subscription Term purchased. 
    18. License Type: means user, Server, Capacity Based or Named Software license. The License Types may be used individually or in combination with other License Types. 
    19. Maintenance: means maintenance and support services for the Software described herein. 
    20. Order: means a written sales order confirming the statement of work and pricing as agreed to by the parties that shall be governed by the terms and conditions set out in the sales order and this EULA. 
    21. Reseller/OEM Product: means a product into which a system integrator or original equipment manufacturer has integrated the Software. 
    22. Sensia: means Sensia, Inc., a Texas corporation, and its Affiliates, having a principal place of business at 200 Westlake Park Blvd., Ste 1400 Houston, Texas 77079. 
    23. Server: means any Device that hosts Server Software and can be run, accessed, or used by another Device. 
    24. Services: means any additional consulting, installation, training, Maintenance, onsite support, or other services set out in the Statements of Work in the Order Quotation and in accordance with specific additional terms and conditions complementing this EULA. 
    25. Software: includes any of the following: Sensia’s computer software, programs, technology, Cloud Services, services, Complementary Software, firmware and associated media and any updates, upgrades or enhancements thereto, or portions thereof. 
    26. Subscription Term: means the term in which you have purchased a subscription for use of the Cloud Services, as set forth in the applicable Order or Activiation Certificate. 
    27. Third Party Software: means third party software furnished with or as part of the Software. 
    28. You: means the licensee of the Software and/or the user of the Software.
  2. LICENSE TYPE 
    1. Named License: means a license to use the Software only by the identified individual person. 
    2. Concurrent License: means a license to use the Software by a specified number of users, provided the number of users accessing or using the Software at the same time do not exceed the number of valid software activations You have purchased. 
    3. Device License: means a license to use the Software on any Device that hosts Software that can be run, accessed, or used by another Device. 
    4. Site License: means a license to use the Software by an unlimited number of Your employees or Your authorized contractors at a Designated Location. 
    5. Capacity Based License: means a license to use the Software based upon a Capacity. 
    6. Capability License: means a usage license required for each Feature that runs, accesses or utilizes, directly or indirectly, the Software. 
    7. Perpetual License: means a licence to use the Software on a permanent basis. 
    8. Lease License: means a licence to use the Software subject to payment of the periodic fees as set out in the Order. At the end of the fee paying term and the payment of any lump sum fee specified in the Order, You are entitled to use the Software on a perpetual basis. 
    9. Subscription License: means a licence to use the Software subject to payment of the periodic fees set out in the Order. At the end of the fee paying term specified in the Order your right to use the Software expires. 
    10. Evaluation License: means a right to use the Software only for the purposes of evaluating and testing, excluding any commercial or production use for a term of ninety (90) days. Software provided under an Evaluation Licence may only be used for testing purposes 
  3. GRANT OF LICENSE 
    1. The rights granted to You with respect to the Software are based on the License Type and the License Term. The License Type and the License Term are detailed in the Order supplied to You at the time of Your purchase confirmation. 
    2. If You have licensed any Software for local installation on Your systems, subject to Your compliance with all the terms and conditions of this EULA, Your timely payment of any applicable license fee, and Your compliance with the activation process if applicable, Sensia and its third party licensors grant You a limited, personal, nontransferable, non-exclusive license during the License Term to download, install and/or use the Software and Documentation for Your own internal business purposes on a Device and at the Designated Location if specified, pursuant to the License Type(s) that You purchased. You are responsible for ensuring your personnel and authorized contractors comply with all relevant terms of this EULA and any failure to comply will constitute a breach by You. Any use of the Software by authorized contractors shall be solely for Your internal business purposes. 
    3. If you have subscribed to any Cloud Services, Your use of those services will be subject to the terms of this EULA, as modified in the attached Addendum, which is incorporated here in full. 
    4. If the Software You have acquired is used in conjunction with Microsoft SQL Server, Oracle or a similar database management system You may be provided with a license for the database management system during installation. If the Software includes limited license rights for the database management system, You agree to only use such database management system in conjunction with the Software, and You will acquire from the database management system provider any licenses that exceeds the rights provided to You under this Software. 
    5. If You are a system integrator or original equipment manufacturer and You have integrated the Software into a Reseller/OEM Product for purposes of resale to Your end customer, You may transfer the Software to Your end customer upon their acceptance of this EULA and Your provision of notice to Sensia. If You are an end customer receiving a Reseller/OEM Product, You acknowledge and agree that (i) You have accepted and are bound by this EULA; (ii) the system integrator or original equipment manufacturer is not authorized to modify or amend this EULA or to offer any warranties or representations regarding the Software; (iii) Sensia’s sole obligations with regard to the Software are as set forth in this EULA; and (iv) You will look solely to the system integrator or original equipment manufacturer for any defects in the Reseller/OEM Product, or incompatibilities with the Software. 
    6. If You use any third party software not supplied by Sensia, including open source software, in conjunction with any Software, You must ensure that such use does not require (i) disclosure or distribution of any Software in source code form, (ii) licensing of any Software for the purpose of making derivative works, or (iii) redistribution of any Software at no charge. For the avoidance of doubt, You may not combine Software with any software licensed under any version of or derivative for the GNU General Public License (“GPL”) in any manner that could cause, or could be interpreted or asserted to cause, the Software or any modification to the Software to become subject to the terms of the GPL. 
    7. You are responsible for all telecommunication or Internet connections and associated fees required to access or use the Software, as well as all hardware and software on Your site. 
  4. RESTRICTIONS 
    1. Copy/Design Restrictions: 
      1. You may not copy the Software or Documentation except to the extent stated in this section. i. You may make a copy of the Software provided that any such copy is only for archival purposes to internally back up the Software. 
      2. You may make a copy of the Software for purposes of installation of the Software within Your organization provided You have purchased licenses for such Software copies. 
      3. iii. You may copy the Software image with prior written consent by Sensia provided you have purchased the required licenses for such Software image copies. 
      4. You will retain and reproduce all copyright or proprietary notices in their exact form on all copies (including partial copies) of the Software or Documentation made by You as permitted per this section 4.1. 
      5. You may not reverse assemble, reverse engineer, decompile, translate or create derivative works based on the Software or Documentation, except and only to the extent that such restrictions may be permitted by applicable law, or as set forth in Section 13. You may not work around or bypass any technical restrictions or limitations in the Software. If You intend to undertake any of the foregoing as permitted by applicable law, You will give Sensia advance notice and an opportunity to provide alternative means to address Your needs. 
      6. If You upgraded or updated the Software to a newer version of the Software, You may not transfer the prior edition or prior version to another user. 
      7. You may not remove, minimize, block or modify any logs, trademarks, copyrights or other notices of Sensia or its licensors that are included in the Software or Documentation. 
      8. You may not use the Software or Documentation to make Software training materials to be sold, licensed, used, or distributed, except for Your internal use of Documentation copied in its entirety, and screen captures of Your Software application. You are solely responsible and liable for any such training materials You produce. 
    2. Use Restrictions: 
      1. You may not provide, utilize, or commercially host the Software as an application service provider or the like for other third parties. 
      2. Except as expressly stated herein, You may not sublicense, rent, resell, lease, or transfer the Software without Sensia’s prior written consent. 
      3. You may only use the Software at the Designated Location if a Designated Location has been specified. 
      4. You may only use the Software on the Designated Device if a Designated Device has been specified. 
      5. You may not use the Software beyond the License Type or License Term You have purchased as stated in your Order. 
      6. The number of users accessing or using the Software at the same time may not exceed the number of valid software activations You have purchased. 
      7. You may download and use Software for a Sensia product only if such product has been legitimately acquired directly from an authorized Sensia source. All other downloads and use thereof is strictly prohibited. For example, if You have acquired a Sensia product from an unauthorized source, e.g., an unauthorized online reseller, You are not permitted to download any materials, including Software and firmware updates, and any use of such materials is prohibited. 
      8. You may not use any Confidential Information to contest the validity of any intellectual property of Sensia or its licensors. 
    3. Other Restrictions: 
      1. You may not separate component parts of the Software for independent use. 
      2. You may not use hardware, software or programing techniques to pool connections, reroute information, or reduce the number of required licenses that directly access or use the Software. 
      3. You may not use any tool, utilities, programing techniques or command lines to provide enhanced interfacing to the Software beyond authorized Sensia available interfaces. d. You are not granted a license to use the automation interface or other programmatic interfaces contained within the Software in conjunction with any third party software not authorized by Sensia in writing, including, but not limited to, change management systems. 
      4. Any application created by use of the Software is prohibited from being translated into instructions that run on third party Software or hardware platforms without our written consent. 
      5. You may only install the Software for use with one architecture and one operating system at any given time. 
  5. LIMITED WARRANTY
    1. The Software is warranted for ninety (90) days after its initial delivery to You that it will substantially conform with its Documentation supplied by Sensia at the time of initial delivery of the Software. Sensia will use commercially reasonable efforts designed to identify and remove any viruses or other similar intentionally harmful code from the Software prior to delivery to You. Defective media on which the Software was delivered will be replaced without charge if returned during the warranty period. This warranty shall be void if You attempt to modify the Software in any way or use the Software in breach of this EULA. Sensia makes no representation or warranty, express or implied, that the operation of the Software will be uninterrupted or error free, or that the functions contained in the Software will meet or satisfy Your intended use or requirements; You assume complete responsibility for decisions made or actions taken based on information obtained using the Software. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Sensia does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack. 
    2. TO THE MAXIMUM EXTENT PERMITTED BY LAW THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SENSIA AND ITS LICENSORS DISCLAIM ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY UNDER UCITA. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY SENSIA OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY ADDITIONAL WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION. 
    3. THE SOFTWARE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET OR BE USED IN CONNECTION WITH HARDWARE AND OTHER PRODUCTS THAT ARE CONNECTED TO THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT SENSIA AND ITS LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB-SITES, COMPUTERS, OR NETWORKS. SENSIA AND ITS LICENSORS WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. 
    4. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. 
  6. LIMITATION OF REMEDIES 
    1. Sensia’s entire liability and Your exclusive remedy for breach of the Limited Warranty shall be: 
      1. The replacement of the Software not meeting the Limited Warranty specified above which is returned with proof of purchase during the warranty period; or 
      2. If Sensia is unable through reasonable efforts to deliver replacement Software which meets the Limited Warranty specified above, You may terminate this EULA by returning or destroying the Software as provided herein, and Sensia or its reseller will refund Your purchase price. 
  7. INDEMNIFICATION: Sensia will pay costs and damages finally awarded in any suit against You to the extent based on a finding that the design of Software licensed hereunder by Sensia infringes any patent, utility model, copyright, or trademark granted or registered in the country of Sensia’s shipping destination, provided that You: (i) promptly inform Sensia of the alleged infringement in writing; (ii) provide Sensia the exclusive right to defend and settle the suit, at Sensia’s expense; and (iii) provide all reasonable information and assistance requested for the defense. Sensia shall have no liability for any infringement that is based upon or arises out of: (a) compliance with Your instructions, specifications or designs; (b) use of Software in Your or a third-party process; (c) combinations with other equipment, software or materials, including Reseller/OEM Products, not supplied by Sensia; or (d) Your failure to implement any update to the Software furnished by Sensia. In the event any Software is determined or believed by Sensia to infringe the rights of a third party, Sensia may, at its sole option and expense, elect to: (a) modify the Software so that it is non-infringing, (b) replace the Software with non-infringing Software that is functionally equivalent or superior in performance, (c) obtain a license for You to continue to use the Software as provided hereunder, or (d) if none of the foregoing can be achieved despite the reasonable efforts of Sensia, terminate the license for the infringing Software, have You return or destroy such Software, and refund to You the license fees paid by Customer for such Software, prorated over sixty (60) months from the date of this Agreement on a straight-line basis. The foregoing states the sole and exclusive obligations of Sensia for intellectual property infringement.
  8. LIMITATION OF LIABILITY
    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SENSIA OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANYSPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION OR DATA, FOR BUSINESS INTERRUPTION, FOR LOST SAVINGS, FOR LOSS OF PRIVACY, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THIS EULA OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SENSIA OR ITS RESELLER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. SOME JURISDICTIONS DONOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
    3. SENSIA'S AND ITS THIRD PARTY LICENSORS’ MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL CLAIMS AND LIABILITIES, INCLUDING THAT WITH RESPECT TO DIRECT DAMAGES AND OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOTINSURED, WILL NOT EXCEED THE LICENSE FEES PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. 
    4. ALL OF THE DISCLAIMERS AND LIMITATIONS OF REMEDIES AND/OR LIABILITY THROUGHOUT THIS EULA WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION OF THIS EULA OR ANY OTHER AGREEMENT BETWEEN YOU AND SENSIA AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF SENSIA’S VENDORS, APPOINTED DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES.
    5. ALL INTERPRETATIONS, RECOMMENDATIONS, AND WELL OR RESERVOIR DESCRIPTIONS AND DECISIONS RESULTING FROM USE OF THE SOFTWARE, SERVICES OR ANY DELIVERABLES ARE OPINIONS AND DECISIONS BASED ON INFERENCES FROM MEASUREMENTS AND EMPIRICAL RELATIONSHIPS WHICH ARE NOT INFALLIBLE AND INVOLVE INDIVIDUAL OPINIONS AND JUDGMENTS WITH RESPECT TO WHICH COMPETENT SPECIALISTS MAY DIFFER. IN ADDITION, SUCH INTERPRETATIONS, RECOMMENDATIONS, WELL OR RESERVOIR DESCRIPTIONS, AND DECISIONS MAY INVOLVE INFORMATION AND DATA FURNISHED BY CUSTOMER THE ACCURACY AND RELIABILITY OF WHICH ARE NOT THE RESPONSIBILITY OF SENSIA.THEREFORE.SENSIA PROVIDES NOWARRANTY FOR ACCURACY, CORRECTNESS ORCOMPLETENESS OFANDYOUTAKE FULLRESPONSIBILITY FOR,ALLINTERPRETATIONS,RECOMMENDATIONS, WELL OR RESERVOIR DESCRIPTIONSAND DECISIONSRESULTINGFROM USE OF THE SOFTWARE, THE SERVICESOR ANY DELIVERABLES.
    6. UNDER NOCIRCUMSTANCESSHOULD YOUTREATOR RELYUPONTHEUSEOFTHESOFTWARE, THE SERVICES OR ANY DELIVERABLES,INCLUDINGANYINTERPRETATION, RECOMMENDATION, AND WELLORRESERVOIRDESCRIPTION,AS THESOLE BASIS FOR ANY DECISION, BE ITOPERATIONAL, TECHNICAL, FINANCIAL,COMMERCIAL OR OTHERWISE, RELATING TOTHE WELLBORE, THE RESERVOIR OR THE FIELD,INCLUDING, BUT NOT LIMITED TO, ANY DECISIONRELATING TO WELL PLANNING, DRILLINGSAFETY ANDPERFORMANCE,FIELDDEVELOPMENT WELL CONTROL PRODUCTIONOPTIMIZATION,CONTINGENCYPLANNING,ANDINFRASTRUCTURE AND SYSTEMS DESIGN ANDOPTIMIZATION.
    7. YOU ACKNOWLEDGE THAT THE SOFTWARE IS DESIGNED AND INTENDED FOR USE ONLY IN ACCORDANCE WITH THE DOCUMENTATION. ANY OTHER USE MAY RESULT IN DEFECTS, ERRORS OR DAMAGE TO THE SOFTWARE, HARDWARE OR DATA, INCLUDING LOSS OF DATA. SENSIA SHALL HAVE NO LIABILITY OR OBLIGATION TO YOU FOR SUCH DEFECTS, ERRORS OR DAMAGE TO THE SOFTWARE, DATA OR HARDWARE ATTRIBUTED TO SUCH USE.
  9. NO HIGH RISK USE: The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale in hazardous environments requiring fail-safe performance in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”).Unless Sensia gives its prior written consent and is consulted regarding the specific deployment, system set-up and Software support plan, the License excludes any High Risk Activities, and You (i)shall not use the Software with respect to any High Risk Activities, and (ii) shall indemnify Sensia and its licensors from all losses, claims, damages, costs, attorneys’ fees and other expenses relating to such High Risk Activities.
  10. TERM AND TERMINATION
    1. This EULA takes effect upon Your downloading, installing, copying or otherwise using the Software and remains effective until terminated for any reason. You may terminate it at any time by destroying all copies of the Software and Documentation in Your possession. This EULA will also automatically terminate if You fail to comply with any term or condition of this EULA. You agree upon termination of this EULA to cease using the Software and either return to Sensia or destroy all copies of the Software and Documentation in Your possession.
    2. If this Software has been licensed to You as part of a subscription service or limited License Term, this EULA shall terminate after the period of the subscription or Licensed Term has lapsed. Termination of this EULA will automatically terminate all licenses granted herein. The protections in this EULA relating to intellectual property protection, confidentiality, disclaimers, and liability limitations shall survive any termination or expiration of this Agreement. 10.2. This Software will cease to operate at the expiration of your License Term. Licensee is not authorized to use features in excess of those originally licensed. 
  11. ACADEMIC USE: If this Software was purchased for academic or research use by an educational institution, it may be used for teaching and research purposes only. Commercial use of the Software is prohibited if the software was intended for educational use. Only the instructor/professor registered to the Software is eligible to contact Sensia for technical support and product updates. If this Software is Arena simulation software, You have the right to make copies of the Software (the media excluding activation) solely for academic, teaching and research purposes. 
  12. PREPRODUCTION RELEASES 
    1. As an accommodation to You, Sensia may provide You with a preproduction release of the Software (often labeled a “beta release”). These releases are not suitable for production use. Because they will be at an early stage of development, operation and use of them may be unpredictable and lead to erroneous results. You agree to comply with the beta form accompanying such Software. 
    2. SUCH RELEASES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND. USE OF BETA RELEASES IS AT YOUR SOLE RISK AND LIABILITY. You waive any and all claims and damages, now known or later discovered, that You may have against Sensia and its suppliers and licensors arising out of these preproduction releases. 
  13. COMPLEMENTARY SOFTWARE: Complementary Software is intended to be used for example purposes or to provide additional complementary features. The Complementary Software may be contained in the Software, Documentation (electronic or printed) or downloaded from the Sensia website. Sensia and its third party licensors make no representations or warranties regarding Your use of the Complementary Software and related Documentation. You may modify and create derivative works of Complementary Software that is in the form of samples or reusable application code. All such Complementary Software is provided "as is", and technical support for and future enhancement of such Complementary Software is not guaranteed nor included as part of Sensia’s standard software support services. Sensia disclaims all warranties with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. 
  14. GOVERNMENT RESTRICTED RIGHTS: If You are a branch or agency of the United States Government, the following provision applies. The Software and Documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). 
  15. EXPORT CONTROLS: The Software and Documentation supplied by Sensia under this EULA are subject to export controls under the laws and regulations of the United States ("U.S.") and any other applicable countries' laws and regulations. You shall comply with such laws and regulations governing export, re-export, import, transfer and use of Sensia Software and Documentation and will obtain all required U.S. and local authorizations, permits, or licenses. You and Sensia each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses. 
  16. AUDIT: You agree that Sensia may audit Your use of the Software for compliance with these terms, upon reasonable notice. You agree to cooperate fully with Sensia and its authorized agents in any such audit to assist in accurately determining Your compliance with the terms and conditions of this EULA. Sensia and its authorized agents will comply with Your reasonable security regulations while on Your premises. In the event that such audit reveals any use of the Software by You other than in full compliance with the terms of this EULA, You shall reimburse Sensia for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance. 
  17. OWNERSHIP 
    1. The Software and Documentation are protected by copyright and other intellectual property laws and treaties. Sensia or its licensors retain the title, copyright, and other intellectual property rights in the Software and Documentation, including permitted copies. You do not acquire any rights, express or implied, other than those expressly granted in this EULA. The Software and Documentation are licensed, not sold. Nothing in this EULA constitutes a waiver of our rights under U.S. or international copyright law or any other law. 
    2. You may provide Sensia with suggestions, comments or other feedback with respect to the Software. Feedback is voluntary. Sensia may use feedback for any purpose, including improvement of the Software, without obligation or restriction of any kind. 17.3. You agree that a material breach of this EULA adversely affecting Sensia’s intellectual property rights may cause irreparable injury to Sensia for which monetary damages would not be an adequate remedy, and Sensia shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law. 
  18. CONFIDENTIAL INFORMATION: You shall not use or disclose any Confidential Information, except as expressly authorized by this EULA, and shall protect all such Confidential Information using the same degree of care which You use with respect to Your own similarly valuable proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. You shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Confidential Information. 
  19. DATA: In Sensia’s performance of services, sales activities, or in connection with Your use of Sensia products and Software (including the Cloud Services), Sensia may obtain, receive, or collect data or information, including Your contact information, computer system, installation, or usage specific data (collectively, the "Data"). In such cases, You grant Sensia a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to facilitate the performance of sales and services by Sensia and its Affiliates (including, but not limited to, quality, safety, energy, and security analytics, product and service diagnostics and prognostics, and reporting), and to facilitate or improve Your use of the products, Software and services. In addition, You grant Sensia and its Affiliates a license to use and aggregate the Data in support of Sensia’s marketing and sales activities. Sensia and its Affiliates may also use this information in the aggregate, in a form which does not personally identify You, to improve our products, Software and services and we may share anonymous aggregate data with our third party suppliers and service providers. 
  20. ASSIGNMENT: You may not assign this EULA, in whole or in part, without Sensia’s prior written consent. Any attempt to assign this EULA without such consent will be null and void. Subject to the foregoing, this EULA will bind and inure to the benefits of each party’s permitted successors and assigns. 
  21. GOVERNING LAW: This EULA shall be governed by the laws of the State of Texas, without regard to any conflict of laws provisions. The United Nations Convention on the International Sale of Goods will not apply. You agree to bring any action in connection with this EULA or the Software exclusively in the state or federal courts of Texas, and You further agree to the jurisdiction of the state and federal courts of Texas for any action that Sensia brings against You. 
  22. THIRD PARTY SOFTWARE: The Software may incorporate, embed, or be bundled with third party software which requires You to accept and be bound by notices and/or additional terms and conditions. Such required third party notices and/or additional terms and conditions are identified in the help or about screens and license.txt or readme text files of the Software and are made a part of and incorporated by reference into this EULA, or as provided in the Product Compatibility download Center. By accepting this EULA, You agree to review such terms and conditions set forth therein, if any, and Your use of the Software will be deemed to be Your acceptance thereof. 
  23. MISCELLANEOUS 
    1. This EULA, the attached Addendum, and, if applicable, the General Terms and any Product-Specific Terms are the complete and exclusive agreement between Sensia and You, and supersede all prior agreements, whether written or oral, relating to the Software provided and the Documentation. No additional or different terms in any purchase order or other similar document furnished by You will be binding on Sensia and all such terms are deemed rejected. This EULA and accompanying Addendum may not be changed or modified except by an instrument in writing signed by a duly authorized representative of Sensia. If for any reason a court of competent jurisdiction finds any provision of this EULA or portion thereof, to be unenforceable, that provision of the EULA shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA shall continue in full force and effect. 
    2. In the event of a conflict between or among this EULA, the attached Addendum, the General Terms, and any Product Specific Terms, the conflict will be resolved in the following order of precedence, ranked from highest to lowest: any Product-Specific Terms, the Addendum, this EULA, and, last, the General Terms. 
    3. The parties acknowledge that they have required the EULA to be drafted in English. In the event of a conflict between the English and other language versions, the English version will prevail. 
    4. The following additonal terms and conditions apply when the Order includes Maintenance. 
  24. MAINTENANCE 
    1. Your right to Maintenance is specified in your Order. 
    2. Maintenance includes the following. 
      1. Support as an additional option in the sale order; 
      2. Continued provision of the Software, as it becomes available; 
      3. For the current version of the Software, commercially reasonable efforts to correct errors in the Software program codes and procedural documents supplied with the Software, where such errors are notified to Sensia during the Maintenance Term and where, in its sole discretion, Sensia recognizes them as substantially detrimental effect on the performance of the Software; d. Where available and listed in the Order, remote support in accordance with the applicable terms and conditions.
    3. All modifications made to the Software by Sensia as part of Maintenance will be in computer readable form and, at Sensia’s discretion, sent to Customer via mail, courier or e-mail. Customer will be responsible for the integration and implementation of any such modifications or updates and enhancements, including loading any applicable media in accordance with Sensia's instructions.
    4. Customer acknowledges and understands that new versions, updates and enhancements may not be compatible with previous versions and data, and may not function properly in a mixed version environment
  25. Exclusions from Maintenance
    1. Sensia is responsible only for Maintenance of unmodified Software. Customer will render void the Maintenance and Sensia will not be liable to Customer for any errors, losses or damage resulting from modifications made to Software by Customer or any third party.
    2. Maintenance does not include application development, Software programing support or step by step instructions for Software configuration above and beyond general usage questions. Advanced assistance may be provided to Customer under the terms of a specific Services agreement.
    3. In addition to the above, Maintenance excludes the following:
      1. problems resulting from you or your authorized contractors fault or negligence
      2. problems that do not significantly impair or affect the operation of the Software;
      3. problems resulting from hardware malfunction:
      4. software not sold or licensed by Sensia, including that which Sensia stops selling, and
      5. installation of the Software on your computer system or training on the use or benefits of the Software (such services may be purchased under a separate Services agreement).
    4. The Software is provided only for standard hardware platforms and operating systems as indicated in the Documentation. Customer is responsible for providing interfaces for non-standard devices, software or custom applications.
  26. Maintenance Term
    1. For perpetual license Software: the Maintenance Term shall be the period specified in the Order.
    2. Maintenance automatically renews and Customer will be invoiced for an additional 12 months’ Maintenance fees at the end of each 12 month term. Once any 12-month Maintenance Term has begun. Customer is not entitled to a refund of any Maintenance fees. Either Party may terminate Maintenance by providing thirty (30) days written notice to the other Party. Such termination will be effective at the end of the ongoing 12-month term. Maintenance will automatically expire if your right to use the Software is terminated.
    3. For Lease Licenses and Rented Licenses: Maintenance will automatically expire when your right to use the Software expires or is terminated.
  27. Maintenance Fees
    1. Fees for Maintenance are specified in the Order. If the Order does not include the fees for Maintenance, initial fees and renewal fees for Maintenance are based on a percentage of the standard fees for the Software in the Sensia's then current price book.
    2. Customer agrees to pay any Maintenance fee invoice within thirty (30) days of Delivery. Sensia may, in its discretion, determine to terminate or withhold Maintenance until payment has been received.
    3. Sensia may increase Maintenance fees by giving Customer not less than forty five (45) days prior written notice of increase, which will become effective on the subsequent renewal period. Notwithstanding the foregoing, no increase in Maintenance fee will apply for any period for which Customer has paid in advance.
    4. If your Maintenance lapses for less than 12 months, Customer may reinstate Maintenance by paying the Maintenance fees Shat would have been due for the whole lapsed period and a reinstatement administrative fee of ten percent (10%) of the annual Maintenance fees. Where Maintenance has lapsed for more than 12 months, the Customer will have to purchase a new Software License, with Maintenance, at the then current price in Sensia's price book.
    5. During the Maintenance Term, once per year Customer may request a replacements of the media on which the Software was provided or its re-hosting on a different machine. Any other media replacement or re-hosting is subject to Sensia prior agreement and specific fee. Customer acknowledges and agrees that, after your Maintenance has lapsed or ended, replacement or re-hosting requests, if accepted, will be subject to additional fees.
    6. When re-hosting has been provided, Customer will no longer use the original Software that was re-hosted.
    7. If Customer has elected not to use the most current version of the Software made available by Sensia during the Maintenance Term, at the end of the Maintenance Term of your Maintenance lapses or is cancelled, Customer has three months to request the Software version it is entitled to use. 

Please see Addendum Below

ADDENDUM IMPORTANT READ THIS AGREEMENT CAREFULLY 

This Addendum (“Addendum”) to the Sensia End User License Agreement (“EULA”) is between You and Sensia for Your access to, and use of, the Cloud Platform and related Software (as defined in the EULA) on a subscription basis. All references to Software in this Addendum are deemed to refer to Software made available by Sensia for access in the form of Cloud Services.

  1. USE OF SOFTWARE. During the License Term, You may use the Software solely for Your internal business operations. You may not sublicense or transfer these rights, except as specifically provided in the EULA. 1.1. You may allow Your employees, agents, and contractors (“Authorized Users”) to use the Software for the purposes provided in the EULA and this Addendum. You shall be fully responsible for Your Authorized Users’ acts and omissions, including without limitation Your Authorized Users’ compliance with this Addendum. 
    1. OEM Customers. If You are an original equipment manufacturer, You may make the Software available to Your customers as an integral part of Your product or service to Your Customer and not as a discrete product or service, unless otherwise set forth in Your Activation Certificate. Sensia consents to such use of the Software provided You abide by the EULA and Addendum terms, and You shall be fully responsible for Your customers’ acts and omissions including Your customers’ compliance with the EULA and Addendum. If You are an end customer receiving an OEM product, You acknowledge and agree that (i) You have accepted and are bound by this Addendum; (ii) the original equipment manufacturer is not authorized to modify or amend this Addendum or to offer any warranties or representations regarding the Software or service; (iii) Sensia’s sole obligations with regard to the Software or service are as set forth in the EULA and this Addendum; and (iv) You will look solely to the original equipment manufacturer for any defects in the OEM product, or any incompatibilities with the Software. 
  2. ADMINISTRATION. Your use of this Software involves having a user account as may be required by Sensia. You agree to accept responsibility for all activities that occur under Your user account. You are responsible for identifying and authenticating all users, approving access by such users, and controlling against unauthorized access. You are responsible for maintaining the confidentiality of Your users’ account information and passwords. Sensia will have the right to rely on any information received from any person or entity using Your user account and password, and Sensia will incur no liability arising out of such reliance. Sensia is not responsible for any harm caused by Your users, including individuals who were not authorized to have access to the Software. If You become aware of any unauthorized use of Your password or user account, it is Your responsibility to notify Sensia as promptly as possible. 
  3. DATA LOCATION. Pursuant to applicable laws, Sensia may process and store Your Data anywhere Sensia or its agents maintain facilities. By using the Software, You consent to this processing and storage of Your Data. For purposes of this Addendum, Your Data will also include Your Customer’s or other third party Data that is made available to the Software or Services (collectively hereafter “Data”). 3.1. Sensia will provide You access to and use of the Software and services on the Cloud Platform. Sensia will not assume any obligations nor responsibility to effect any Data connection to such Cloud Platform. Such Data connection and the use of and access to applicable Software or service requires an internet connection and suitable software and hardware as described in the applicable Software or service product descriptions. 
  4. CUSTOMER DATA. You represent and warrant that You have the rights to the Data provided or made available by You to Sensia, for Sensia to perform its obligations under this Agreement, and that such access to and use of the Data provided under the EULA or this Addendum will not violate any law or infringe or violate any agreement, confidentiality obligations, copyrights, or other intellectual property rights of any other third party. 
  5. YOUR OBLIGATIONS. 
    1. You are responsible for Your or Your customer’s Data and use of the Software. 
    2. You will obtain and maintain all required consents necessary to permit processing Your or Your customer’s Data within the Software. 
    3. You agree not to use, or permit use of the Software, in a manner that violates the Sensia Acceptable Use Policy, as referenced below. 
  6. You will defend, indemnify, and hold Sensia and its Affiliates against any liabilities, damages, fines, sanctions, and costs arising from (a) Your Data, including breach of Section 5 (Customer Data); (b) Sensia’s use of Your Data as permitted herein; or (c) 
  7. Your use of the Software in violation of the EULA or this Addendum. 7. DATA STORAGE. Sensia and its suppliers are not responsible, or liable for, the deletion of or failure to store any of Your Data and other communication maintained or transmitted through use of the Software. You are responsible for Your own disaster recovery plan, including but not limited to, securing access to and backing up Your Data. 
  8. ADDITIONAL RESTRICTIONS. You agree not to, and not to allow third parties, to:
    1. use Software for high risk activities such as the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems environments; 
    2. Distribute viruses, worms, Trojan horses, corrupted files, or other items of a destructive or deceptive nature. 
  9. COMPLIANCE. You acknowledge that Sensia or a third party on Sensia’s behalf may monitor Your access to and use of the Software to the extent required to ensure compliance with these terms. 
  10. UPDATES. Sensia or its suppliers may make changes to the Software from time to time. If You have paid for the Software, Sensia will provide You with one month prior notice before removing any material feature or functionality, unless security, legal, or system performance considerations require an expedited removal. 
  11. SECURITY. Commercially reasonable physical, logical, and technical measures are used to protect your Data. For more information about such measures, please refer rok.auto/legalnotices. 
  12. DATA PRIVACY. Sensia treats Your Data in accordance with our privacy terms located at sensiaglobal.com. 
  13. SUSPENSION OR TERMINATION. To the extent You are using Software legitimately acquired from an authorized Sensia source at no cost to You, or within an applicable grace period, Sensia may suspend or terminate the Software at any time for any or no reason, including, but not limited to, if Sensia reasonably believes: (i) You have violated the EULA or this Addendum; (ii) Your user account should be removed due to prolonged inactivity; (iii) Sensia’s provision of the Software is no longer commercially viable. Sensia will make reasonable efforts to notify You by the email address associated with the user account. 
  14. TERMINATION OF USE. Sensia may immediately disable, suspend, or terminate Your access to or use of the Software, if You violate any provision of the EULA or this Addendum. Sensia may delete or render inaccessible any of Your Data that remains in the Software, and Sensia will have no liability for deletion of Your Data. 
  15. DATA OVERAGE. SENSIA RESERVES THE RIGHT TO CHARGE YOU AT THE END OF YOUR SUBSCRIPTION TERM IF YOU EXCEED THE LEVEL OF USAGE AUTHORIZED IN YOUR INITIAL PURCHASE OF THE SOFTWARE PROVIDED ONLINE, ON A SUBCRIPTION BASIS, OR IN ASSOCIATION WITH SERVICES ENABLED IN THE CLOUD. 
  16. APPLICABILITY. THESE TERMS ARE BETWEEN SENSIA AND YOU, REGARDLESS OF WHETHER THE PURCHASE IS MADE DIRECTLY FROM SENSIA OR THROUGH ANY AUTHORIZED DISTRIBUTOR OR ANY OTHER AUTHORIZED RESELLER. 

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