SOFTWARE LICENSE AGREEMENT
AND ADDENDUM FOR USERS OF MITSUBISHI SOFTWARE
LICENSE: MDT, Inc. (“MDT”) hereby grants Licensee a non-transferable and non-exclusive license (the “License”) to use the MDT AutoSave or AutoSave for System Platform software (the “Software”) and documentation relating thereto, for the Licensee’s own purposes, upon the terms and conditions as set forth in this Agreement. The Software is not to be used for purposes of computer timesharing, or for other similar activities.
TERM: The term of the License shall commence on the date which the software purchase is invoiced to Licensee (the “Effective Date”.) The term of a perpetual License shall continue indefinitely following the Effective Date unless it is terminated as provided for in this Agreement. The term of a subscription purchase shall continue for the period of the subscription purchase and either expire automatically, be extended in contiguous intervals via payment received by MDT, or be terminated as provided for in this Agreement.
LOCATION: MDT authorizes the Licensee to use the Software in any machine-readable form for the number of servers, supported applications, devices, device types, agents and modules for which a license is purchased. A separate license is required for each additional central processing unit for which the Software will be used, provided, however, that the Software may be used on another central processing unit temporarily if the usual central processing unit is inoperative due to malfunctionThe term of the License shall commence on the date which the software purchase is invoiced to Licensee (the “Effective Date”.) The term of a perpetual License shall continue indefinitely following the Effective Date unless it is terminated as provided for in this Agreement. The term of a subscription purchase shall continue for the period of the subscription purchase and either expire automatically, be extended in contiguous intervals via payment received by MDT, or be terminated as provided for in this Agreement.
REPRODUCTION AND CONFIDENTIALITY: The computer-readable media may be copied by Licensee for backup and archive purposes, providing that no more than one (1) backup or archival copy of each Software product shall be in existence under this Agreement at any one time. Each such copy shall include any and all confidential, proprietary and copyright notices and markings contained on the original provided by MDT. The Licensee acknowledges that its rights in and to the Software may not be assigned, licensed or otherwise transferred. Licensee agrees to treat the Software and related materials with the same degree of confidentiality with which it treats its own confidential materials, and agrees not to disclose or otherwise make available the Software or related materials, in whole or part, to any person outside the Licensee’s organization except agents of Licensee. Excluded from these obligations of confidentiality is any information that is or becomes available to the Licensee from an independent source without breach of this Agreement or violation of law. This obligation of confidentiality shall survive the termination of this Agreement for a period of five (5) years. Licensee shall be liable for any breach of this contract pertaining to transferability, reproduction or confidentiality of a third person, if Licensee was the source from which the third party obtained the Software.
ENHANCEMENTS: There shall be no charge to Licensee for such enhancements which MDT chooses to make available to Licensee at no extra cost. All other enhancements will be offered to Licensee at MDT’s then effective price. Acquisition and use of these enhancements shall be governed by the terms and conditions of this Agreement. MDT will provide updates of Software for ninety (90) days after Effective Date at no charge.
TERMINATION AND RELIEF: MDT may terminate this Agreement at any time if Licensee defaults in the performance of any material obligation under this Agreement and does not correct such condition within thirty (30) days of receiving written notice thereof from MDT. This Software License Agreement shall terminate immediately if an assignment is made of the Licensee’s business for the benefits of creditors or if a receiver or trustee in bankruptcy is appointed to take charge of all of the Licensee’s property. Upon termination, the Licensee shall: discontinue use of the Software; forthwith deliver to MDT all licensed Software and related materials furnished by MDT together with all copies thereof or certify in writing that all Software, copies thereof, and documentation have been destroyed; erase or destroy any of the licensed Software contained in computer memory or storage apparatus under the control of the Licensee; remove the licensed Software from any software that incorporates or uses the licensed Software in whole or in part; and warrant in writing to MDT within twenty (20) days of termination that all actions have been taken by Licensee. In the event of breach of any provision of this Agreement by Licensee, MDT shall be entitled to injunctive relief in addition to damages incurred and reasonable attorney’s fees, as established by the Court.
WARRANTIES: MDT warrants that a copy of Software delivered will be a true copy of MDT’s standard version of Software as most recently released by MDT as of the Effective Date, and that said copy on the Effective Date shall conform reasonably to the specifications as such set forth in the Software User Documentation. MDT warrants that it has made reasonable effort to supply Software in official release form that is free of viruses and disabling codes. MDT warrants that it has the right to license the Software, and that it will indemnify and hold Licensee harmless for any costs, fees or awards asserted against it by a third party based on a claim that the software infringes on a patent, copyright, trade secret or other proprietary right of a third party. MDT’s obligations for breach of warranty shall be limited to correction or replacement of that portion of Software which fails to reasonably conform to the warranty. MDT shall have no responsibility to correct any errors or damages caused by or arising out of hardware defects or input errors. In no event shall MDT be liable for any breach of warranty unless written notice thereof is given to MDT within ninety (90) days after the installation of the Software. Support of the Software after the expiration of the warranty period shall be pursuant to MDT’s Extended Software Support (“ESS”) policy. MDT’s warranty obligations shall be voided if: 1) the Licensee modifies Software without the prior written notice consent of MDT; 2) the Licensee attempts to use Software in any operating environment incompatible with Software; or 3) the non-conformance of Software is due to the misuse or negligence of any person other than those employed by MDT. The warranties contained herein are in lieu of all other warranties, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose.
LIMITATION OF LIABILITY: MDT shall not be liable for any indirect, consequential, incidental or tort damages, including, but not limited to, any expenses, claims, liabilities, loss or damage of any kind arising out of or in connection with the use of Software.
RIGHT OF REFUSAL: MDT reserves the right to reject any purchase from a party who provides products or services that are substantially similar to MDT’s Products or Services.
ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings of the parties. This Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived in whole or in part, except by written amendment signed by the parties hereto.
CHOICE OF LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, USA. Any claims arising out of this Agreement shall only be litigated in the state or federal courts in Georgia. Each party irrevocably agrees to submit itself to the jurisdiction of said courts and to waive any claims of inconvenient forum.
LICENSE ADDENDUM FOR CUSTOMERS USING MITSUBISHI SOFTWARE IN CONNECTION WITH MDT AUTOSAVE
IMPORTANT: THE FOLLOWING APPLIES TO USAGE OF MDT AUTOSAVE PLUGIN DRIVERS FOR MITSUBISHI EQUIPMENT OR SOFTWARE. PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS ADDENDUM.IN THE EVENT THAT YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS ADDENDUM, PLEASE RETURN YOUR SALES RECEIPT AND THE SOFTWARE TO THE LOCATION WHERE YOU OBTAINED THE SOFTWARE FOR A FULL REFUND.
The terms and conditions of this Addendum shall apply to the software supplied herewith by MDT Software (hereinafter referred to as “COMPANY”) to you (hereinafter referred to as “CUSTOMER”). The term “SOFTWARE” means any program on any media and any and all related documents and materials provided herewith by Company.
The SOFTWARE is protected by copyright laws and international copyright treaties as well as any other applicable intellectual property laws and treaties. The SOFTWARE is licensed under the terms and conditions herein, not sold. CUSTOMER acknowledges and agrees that the SOFTWARE incorporates the software which is provided and licensed from Mitsubishi Electric Automation, Inc (hereinafter referred to as “MEAU”).
ARTICLE 1 – GRANT OF LICENSE
1.1 COMPANY hereby grants to CUSTOMER a non-exclusive and nontransferable license to use one copy of the SOFTWARE in object code form on a single computer. 1.2 COMPANY hereby grants to CUSTOMER a non-exclusive and nontransferable license to make one (1) copy of the SOFTWARE for ARCHIVAL PURPOSES ONLY; provided, however, that such copy shall contain the same copyright notice and proprietary marking appearing on the original SOFTWARE.
ARTICLE 2 – COPYRIGHT
All title and copyrights in and to the SOFTWARE and any copies of the SOFTWARE shall be owned by COMPANY or MITSUBISHI ELECTRIC CORPORATION (hereinafter referred to as “MEAU”). All rights not specifically and expressly granted to the CUSTOMER under this Addendum shall be reserved by COMPANY or MEAU.
ARTICLE 3 – RESTRICTIONS
Except as expressly provided in the above Article 1, CUSTOMER shall not:
(a) make any copy or copies of the SOFTWARE;
(b) modify the SOFTWARE;
(c) sell, distribute, sub-license, lease, rent, assign, transfer or otherwise dispose of the SOFTWARE
(d) reverse engineer, decompile or disassemble the SOFTWARE;
(e) sub-license, assign or transfer the rights granted to CUSTOMER hereunder.
ARTICLE 4 – LIMITED WARRANTY
4.1 COMPANY will, free of charge, repair or replace any defective recording media upon which the SOFTWARE is recorded if the media is returned by CUSTOMER to the location where CUSTOMER obtained it within ninety (90) days from the date of initial receipt of the SOFTWARE by CUSTOMER. This limited warranty does not cover defects due to any accident, abuse or misapplication, or any cause occurring after the initial receipt of the SOFTWARE by CUSTOMER. The repair or replacement of the SOFTWARE pursuant to this Article 4.1 shall be CUSTOMER’s exclusive remedy.
4.2 Neither MEAU nor COMPANY (hereinafter collectively referred to as “MITSUBISHI”) warrant that the functions of the SOFTWARE will meet CUSTOMER’s requirements or that SOFTWARE operation will be error-free or uninterrupted.
4.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 4, THE SOFTWARE IS PROVIDED TO CUSTOMER ON “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PATICULAR PURPOSE.
ARTICLE 5 – LIMITATION OF LIABILTY
MITSUBISHI SHALL NOT BE LIABLE FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, GENERAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION AND THE LIKE), WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 6 – EXPORT CONTROL
CUSTOMER agrees to comply strictly with all applicable laws and regulations including but not limited to export control laws and regulations. CUSTOMER shall not, without COMPANY’s prior written consent and any applicable governmental approval, carry out or export the SOFTWARE, directly or indirectly, to any country other than the country where CUSTOMER initially obtained the SOFTWARE.
ARTICLE 7 – TERM AND TERMINATION
7.1 Unless terminated under this Addendum, this Addendum shall continue in effect indefinitely.
7.2 COMPANY and/or MITSUBISHI may terminate this Addendum if CUSTOMER fails to comply with any of the terms and conditions of this Addendum.
7.3 CUSTOMER may, with one (1) month prior written notice to COMPANY, terminate this Addendum.
7.4 Should the license agreement between COMPANY and MITSUBISHI be terminated, this Addendum shall be automatically terminated.
7.5 On termination of this Addendum for any reason, all CUSTOMER’s rights granted by under this Addendum shall be automatically terminated and CUSTOMER shall promptly cease to use all the SOFTWARE and, at CUSTOMER’s costs, i) shall promptly return all copies of the SOFTWARE to COMPANY or ii) shall promptly destroy all copies of the SOFTWARE and submit to COMPANY a certificate testifying that all copies of the SOFTWARE have been destroyed.
ARTICLE 8 – MISCELLANEOUS
8.1 This Addendum shall be governed in all respects by the laws of Japan.
8.2 CUSTOMER agrees and acknowledges that CUSTOMER’s breach or threatened breach of this Addendum will cause irreparable injury to COMPANY and/or MITSUBISHI and that, in addition to any other remedies that may be available, in law, in equity or otherwise, COMPANY and/or MITSUBISHI shall be entitled to obtain injunctive relief against threatened breach of this Addendum or the continuation of any such breach by CUSTOMER in any competent court.