END-USER SOFTWARE LICENSE AGREEMENT (CALLED IN THE FOLLOWING “EULA”)

IMPORTANT NOTE – READ CAREFULLY:

THIS END-USER SOFTWARE LICENSE AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, AS A DESIGNATED USER OR AS A REPRESENTATIVE IN THE NAME OF A COMPANY OR AN ORGANIZATION, CALLED IN THE FOLLOWING THE “LICENSEE” AND THE PEPPERL+FUCHS SE, MANNHEIM, GERMANY CALLED IN THE FOLLOWING THE “LICENSER”.  

READ THE WHOLE AGREEMENT CAREFULLY BEFORE YOU CONTINUE TO DOWNLOAD AND INSTALL AND/OR USE THE SOFTWARE. BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, LICENSEE CONFIRMS HIS ACCEPTANCE AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

IN CASE THE LICENSEE DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THE LICENSEE SHALL NOT PROCEED WITH THE DOWNLOAD AND DOES NOT INSTALL AND/OR USE THE SOFTWARE AND SHALL DELETE ALL ALREADY DOWNLOADED DATA AT HIS OWN EXPENSE.  

1.        Definitions

Licenser:        Pepperl+Fuchs SE, Lilienthalstr. 200, 68307 Mannheim, Germany

Software:       Means the Licenser software program(-s) as all or in part including the main and all its auxiliary programs and the related information which are offered for download on the Licensers` internet homepage or on a data carrier and which are defined in Section 2 of this EULA.

Any updates to such Software which the Licensee is entitled to receive and that has been provided to him by the Licenser shall also mean Software for purposes of this Agreement.

License:         By granting a License the Licenser grants to the Licensee the right to download, install and use the Software under the terms and conditions defined in this EULA

Product:         Means each product of the Licenser needing the Software for purpose of remote management and configuration of a Pepperl+Fuchs VisuNet GXP or IXD device

2. Subject matter of the EULA

2.1                   The Licenser provides the Software which is subject to the following terms and conditions of use called “GXP PC Service Tool”.

The Software needs an environment as described in the related documentation to be operative.

2.2                   A Service Contract for the Software is not available.

3. Grant of License

3.1                   Subject to the terms and conditions set forth in this EULA, the Licenser grants the Licensee a personal, non-exclusive, royalty-free and timely not limited License to use the Software according to the following provisions:

3.2                   The Licenser grants to the Licensee the right to download, install and use the Software for the purpose of operating the Product on one or more workstations. The Licensee may only use the Software for that use.

3.3                   The Licensee is entitled to make copies of the Software if necessary, provided that such copy clearly marks all copyright notices and any other proprietary legends regarding the original copy.

3.4                   The Licensee shall only after prior written consent of the Licenser be entitled to transfer the right to use the Software to a third party provided the third party accepts to enter into the terms and conditions of this EULA and the Licensee does not retain any copies of the Software.

4. License Restrictions

4.1                   The Licensee is in no way entitled to change, alter, enhance the Software or any parts of the Software and may not make any modifications on the Software or create derivative works based upon the Software except with the prior written consent of the Licenser.

4.2                   The Licensee is in no way entitled to de-compile, disassemble or otherwise reverse engineer the Software or any parts of the Software, in whole or in parts or attempt to access or derive the source code of the Software or any algorithms, concepts, techniques, methods or processes embodies therein.

4.3                   Other than as set forth in Section 3 the Licensee is no way entitled to make or distribute copies of the Software, rent, lease, lend or sublicense the Software.    

5. Infringement of licences

In the event of breach of Section 3 to 4 of this EULA by the Licensee, the Licensee commits himself to pay a penalty to be determined by the Licenser as appears just and equitable and which in case of dispute shall be reviewed by the competent court. All other claims for damages shall remain unaffected thereby; however the penalty shall be offset against said claims.     

6. Infringement of third party rights

6.1                   In the event that any material part of the Software becomes subject of a valid third party claim of copyright, patent or other proprietary right infringement, the Licenser shall, at its option, either (i) replace the Software with a compatible, functionally equivalent, non infringing software product; (ii) modify the Software or take some other action so that it is no longer infringing; (iii) procure the right for the Licensee to continue using the Software; or (iv) if, in the sole discretion of the Licenser, none of the foregoing alternatives is reasonably or with reasonable costs and/or efforts available, terminate this License.

6.2                   In case of termination, the Licensee immediately undertakes to immediately refrain from any further use of the Software and to destroy all copies and to remove any Software installed on workstations.

6.3                   The foregoing states the entire liability of the Licenser with respect to claims for copyright or patent infringement and except as provided in this section Licenser shall have no other liability to Licensee whatsoever for any loss or damage or infringement claims against Licensee by third parties arising out or related to any allegation or determination that Licensee`s use of the Software infringes any proprietary or intellectual property right. 

7. Ownership and Intellectual Property Rights, passing of risk

7.1                   The License grants to the Licensee the limited license to use the Software according to the terms of this EULA.

7.2                   All title and interest to, and intellectual property rights in the Software and any related documents are and shall remain owned and/or controlled solely and exclusively by the Licenser. The Licenser reserves all rights in the licensed Software not specifically granted to the Licensee in this EULA, including national and international Copyright. 

7.3                   Passing of the risk between Licenser and Licensee concerning the Software takes place at the time the Software leaves the Licenser`s sphere of influence e.g. the data have left the server holding the Software and the download has been done.

8. Limited Warranty and Disclaimer

8.1                   The Licensee expressly acknowledges and agrees that he is using the licensed Software at his own sole risk. The Licenser provides no warranties or other remedies, whether express or implied, for the licensed Software. It is provided “as is” without warranty, term or condition of any kind unless otherwise agreed to in this EULA.

8.2                   The Licenser warrants that at the date of passing of risk, that when the Software is installed in the hard- and/or software configuration in which it is delivered to the Licensee, the Software will perform in substantial conformance with the performance described in the related information.

8.3                   Except as set forth in the forgoing limited warranty the Licenser disclaims all other warranties whether express, implied or otherwise, including the warranties of merchantability or fitness for a particular purpose. Also, the Licenser does not warrant that the Software is error-free or will operate without interruption.

8.4                   No additional oral or written information or advice given by the Licenser, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of any warranty provided above.

8.5                   Licenser and Licensee agree that there is a defect in the Software if it does not have the above stipulated qualities and properties defined in Sec. 8.2 on passing of risk. Defects in the Software recognized on the Licensee’s side can only be accepted when they are reconstructable or proven.

8.6                   There is no defect if the Software is used on hardware or on an operating system which does not meet the requirements which have been laid down in the corresponding documentation. There is either no defect in the following cases:

· damages resulting from faulty or negligent handling of the Software not caused by the Licenser,

· damages resulting from particular external influences not assumed under this EULA,

· any modifications made by the Licensee or third parties, and any consequences resulting there from,

· incompatibility of the Software with the data processing environment of the Licensee.

8.7                   If there is any defect, the Licenser is entitled to choose the option of remedying the defect at its own sole discretion by (a) delivering a substitute for the defect Software or (b) offering a subsequent performance. The warranty period shall be governed by the purchase contract of the Product. 

9. Limitation of Liability

9.1                   The maximum aggregate liability of the Licenser or its officers, directors, employees, agents, distributors and resellers under this License for all losses or damages, expenses or injuries either direct, indirect, incidental or otherwise, arising out of the breach of any express or implied warranty, term or condition, breach of contract, tort, statue or any other legal theory arising out of, or related to this EULA or the use the Software shall be limited to 5% of the purchase price for the Product paid by the Licensee.

9.2                   IN NO EVENT SHALL LICENSER BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR (A) LOSS OF PROFITS, LOSS OF REVENUE, (B) INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH (C) LOSS OF DATA OR ANY ASSOCIATED EQUIPMENT DOWN TIME.

9.3                   The limitation of liability does neither apply when the Licenser is liable for intentional breach of duty or gross negligence regardless of the legal ground nor when a higher liability is asked according to compulsory statutory regulations such as but not limited as provided in the Product Liability Act.

9.4                   No action or proceeding relating to this EULA may be commenced by Licensee more than three month after the cause of action arises.

10. Damages arising out of the Licensee actions

The Licensee is liable for and shall defend and hold the Licenser harmless from and against any and all liabilities, damages, costs, expenses or losses arising out of his use of the licensed Software, his negligent or wrongful acts, his violation of any applicable laws or regulations, and/or his breach of any provision of this EULA. Particularly defects in the Software have to be indicated to the Licenser immediately after the defect has been noticed to prevent anyone from harm.

11.  Termination

The Licenser may terminate this EULA at any time at his own discretion in the event of a material breach of the terms and conditions of this EULA by the Licensee by a written notice of termination to the Licensee. Upon termination of this EULA for any reason the Sections 1, 8, 9, 10, 13 and 14 remain in effect. In case of termination the Licensee has to delete the Software from his workstations. In case of termination for Licensees material breach of the Agreement all other rights of the Licenser remain reserved.

12. Third party software

Not applicable

13. Governing Law and place of jurisdiction

13.1                 The validity, interpretation and legal effect of this EULA shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany under the exclusion of German conflict law.

13.2                 The courts of Landgericht Mannheim, Germany, shall have sole jurisdiction of any controversies regarding this EULA. Any action or other proceeding which involves such a controversy shall be brought in those courts in Mannheim and not elsewhere.

14. Severability and inconsistencies

14.1                 Should any provision of this EULA be determined to be overly broad, ambiguous or otherwise unenforceable, such provision shall be redrafted in order to narrow its scope to the extent necessary to make the provision reasonable and enforceable. If the scope of the provision cannot be narrowed to such an extent that the provision will become enforceable, such provision shall be severed from this EULA.

14.2                 In all cases the remainder of the EULA shall continue in full force and effect.

15. Alterations

Alterations and changes of as well as amendments to this EULA are only valid when they were made in writing and signed by both parties; this requirement of written form can be waived only in writing.