Software License Agreement
ELECTRICAL RESOURCES (ERI) END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (EULA ). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
EVALUATION LICENSE. If You are licensing the Software for evaluation purposes, your use of the Software is only permitted in a non-production environment and for the period limited by the Software License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided AS-IS without support or warranty of any kind, expressed or implied.
1. DEFINITIONS
1.1 Documentation means, collectively, the operation instructions, release notes, user manuals and/or help files for the Software in electronic or written form.
1.2 Guest Operating Systems means instances of third-party operating systems licensed separately by You and installed in a Virtual Machine.
1.3 Software means software products that are licensed to You under this EULA, including, but not limited to, any related components purchased or provided with the Software, Documentation, and any maintenance releases thereto.
1.4 Software License Key means a valid serial number issued to You to activate and use the Software.
1.5 Open Source Software means various software components including open source software, that may be part of the Software, each licensed to You under its own applicable license terms and conditions, which can be found in the open_source_licenses.txt file, the Documentation or as applicable, the corresponding source files for the Software available at http://www.electricalresources.com/open_source.html.
1.6 Virtual Machine means a software container that can run its own operating system and execute applications like a physical machine.
2. GRANT AND USE RIGHTS FOR SOFTWARE
2.1 License Grant. The Software is licensed, not sold. Subject to the terms of this EULA, Electrical Resources, Inc. (ERI) grants You a non-exclusive, non-transferable license, without rights to sublicense, to use the Software in the country where You are invoiced in accordance with the Documentation and the ERI license model (per device, per processor, per server, per single user, per virtual machine, or any other ERI approved license model) specified in Section 8 of this EULA for which You have paid the applicable license fees. If You were invoiced in the European Union for the Software, You may use that Software in any of the European Union member states. You may allow third party consultants or contractors to access and use the Software on Your behalf solely for Your internal business operations, provided, they are bound by an agreement with You protecting ERI s intellectual property with terms no less stringent than this EULA and You ensure that such third party use of the Software complies with the terms of this EULA. You may make one backup, unmodified copy of the Software solely for archival purpose. If You upgrade or exchange the Software from a previous validly licensed version, You must cease use of the prior version of that Software. You agree to provide written certification of destruction of the previous version of the Software upon ERI s request.
2.2 Restrictions. Except as expressly permitted by this EULA or by applicable law, You may not (i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software; (ii) permit any use of or access to the Software by any third party, (iii) operate the Software on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party, except that, for the purposes of this Section 2.2(iii), You may use the Software to deliver hosted services to Your affiliates that are directly or indirectly controlled by, or are under common control with You. Control in this Section 2.2(iii) means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity; (iv) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software; (v) modify or create derivative works based upon the Software; or (vi) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software. If You wish to exercise any rights to reverse engineer to ensure interoperability in accordance with applicable law, You must first provide ERI with written notice and all reasonably requested information to sales@electricalresources.com within 30 days and permit ERI to assess your claim and, at ERI s sole discretion, to make an offer to provide alternatives that reduce any adverse impact on ERI s intellectual property or other rights.
2.4 Benchmarking. You may use the Software to conduct internal performance testing and benchmarking studies, the results of which only You may publish or publicly disseminate, provided that ERI has reviewed and approved of the methodology, assumptions and other parameters of your testing and studies. Please contact ERI at sales@electricalresources.com to request such review.
2.5 Third-party Software. You are responsible for separately obtaining and complying with any licenses necessary to operate third-party software, including but not limited to, Guest Operating Systems and application programs which the Software enables You to run.
2.6 Data Collection and Privacy. You agree that ERI may collect, use, store and transmit technical and related information about your use of the Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics ( Collected Data ) to facilitate the provisioning of updates, support, invoicing or online services to You. Collected Data is subject to ERI s Privacy Policy at http://www.electricalresources.com/privacy.html.
2.7 Audit Rights. During the term of this EULA and for two (2) years after termination or expiration of the EULA or support and subscription services for the applicable Software has expired, You agree to maintain accurate records as to your installation and use of the Software, sufficient to provide evidence of compliance with the terms of this EULA. ERI, or an independent third party designated by ERI, may audit, upon written notice to You, your books, records, and computing devices to determine your compliance with this EULA and your payment of the applicable license and support services fees, if any, for the Software. ERI may conduct no more than one (1) audit in any twelve (12) month period. In the event that any such audit reveals an underpayment by You of more than five percent (5%) of the license amounts due to ERI in the period being audited, or that You have breached any term of the EULA, then, in addition to paying to ERI any underpayments for Software licenses and Support and Subscription ( SnS ) fees and any other remedies ERI may have, You will promptly pay to ERI the audit costs incurred by ERI.
3. TITLE. ERI retains all right, title, and interest in and to the Software, the Software License Key(s) and all related intellectual property rights. ERI retains all rights not expressly granted to You in this EULA.
4. SUPPORT AND SUBSCRIPTION SERVICES. Except as expressly specified in Section 8 of this EULA, ERI does not provide any support or subscription services for the Software under this EULA. You have no rights to any updates, upgrades or extensions or enhancements to the Software developed by ERI unless you separately purchase ERI support or subscription services. These support or subscription services are subject to ERI s then-current Support and Subscription Contract Terms and Conditions.
5. TERMINATION. ERI may terminate this EULA immediately upon notice if You fail to comply with any term of this EULA. In the event of termination, You must remove and destroy all copies of the Software and Software License Key(s), including all backup copies, from the server and all computers and terminals You own, possess or control and on which the Software is installed. Any obligations to pay fees incurred prior to termination and Sections 1, 2, 3, 6, 7 and 8 of this EULA shall survive termination for any reason.
6. LIMITED WARRANTY AND LIMITATION OF LIABILITY
6.1 Limited Warranty. ERI warrants that (i) the physical media, if any, on which the Software is delivered will be free of defects in materials and workmanship; and (ii) that the Software will substantially conform to the functional description set forth in the standard Documentation accompanying the Software for a period of 90 days after the date of delivery of the Software License Key to You ( Warranty Period ). If the physical media is defective and is returned to ERI within the Warranty Period, your exclusive remedy will be ERI s option to repair or replace the defective physical media.. To return the defective physical media, send an email to sales@electricalresources.com to request a return authorization number. If during the Warranty Period the Software does not substantially conform to the functional description set forth in the Documentation, your exclusive remedy will be that ERI shall, at its sole option, correct the defects in the Software or refund the license fees You paid, if any, for the Software provided that (i) the Software has been properly installed and used at all times and in accordance with the Documentation; (ii) no modification, deletion or addition has been made to the Software by persons other than ERI or its authorized representative; and (iii) ERI receives written notice of the non-conformity within the Warranty Period. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT MANDATED BY LAW, ERI AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND ERI AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL ERI AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. ERI S AND ITS LICENSORS LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER ERI OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. GENERAL
7.1 Entire Agreement. This EULA represents the entire agreement between the parties with respect to the Software, and supersedes any prior or contemporaneous oral or written agreements concerning the subject matter contained herein.
7.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
7.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written agreement executed by the party against which it is asserted.
7.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
7.5 Export Controls. The Software is of United States origin and is provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
7.6 U.S. Government Restricted Rights. The Software and Documentation are deemed to be commercial computer software and commercial computer software documentation, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software by the U.S. Government shall be governed solely by the terms of this EULA.
7.7 Governing Law. This EULA is governed by the laws of the State of California, United States of America, unless mandated by other law. The United Nations Convention for the International Sale of Goods shall not apply.
7.8 Contact Information. Please direct legal notices or other correspondence to Electrical Resources, Inc., 2323 S. Washington Ave, Suite 200, Titusville, Florida 32780, United States of America. If You have any questions concerning this EULA, please send an email to sales@electricalresources.com.
8. SOFTWARE-SPECIFIC TERMS AND CONDITIONS. In addition to the above sections, the Software is subject to the following terms and conditions. In the event of any conflict between the Software-specific terms and conditions and sections 1-7 of the EULA, the Software-specific terms and conditions shall control.
You may install and use the Software on a number of computers equal to the number of licenses purchased. Installing and running a single license of the Software on multiple computers is prohibited even if the computers are not running the Software concurrently. Concurrent use of the Software by multiple users on a single computer is prohibited.
You may use the Software to host application-based dedicated services to a third party, provided, such service does not provide computing or processing power (such as utility computing, grid computing or cloud computing) or any computer application-based service that is traded, rented, leased, or sold on a Virtual Machine basis.
Limited support and subscription services.
Unless You have purchased additional ERI support and subscription services for the Software, ERI will provide you with support services for the Software for a period of one year (365) days after the date of purchase.
Internet Based Services. If you choose to enable the User Experience Improvement Program or the Software Updates features of the Software, you consent to the collection of certain data by ERI. The Internet-Based Services do not collect any personal data or any information that can be used to identify or contact you. Collected data is subject to ERI s Privacy Policy at www.electricalresources.com/privacy.html. For more information about these features, please see the Software Documentation.
Application Programming Interface (APIs)
The APIs are provided for your personal use solely for the purpose of creating software that communicates with ERI Software ( Developer Software ). You agree to defend, indemnify and hold harmless ERI, and any of its directors, officers, employees, affiliates or agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys fees), arising from your use, modification and distribution of the distributable code and the Developer Software.
You will not (1) use the APIs to create, design or develop anything other than Developer Software; (2) make any more copies of the APIs than are reasonably necessary for the authorized use and backup and archival purposes; (3) modify, create derivative works of, reverse engineer, reverse compile, or disassemble the APIs, except that you may modify and create derivative works of, and distribute any code provided in the APIs that is designated by ERI in the APIs documentation as distributable code solely as part of your Developer Software; (4) distribute, sell, lease, rent, lend, or sublicense any part of the APIs to any third party except as designated herein and as necessary to distribute Developer Software or; (5) use the APIs to (a) create, design or develop software or services to circumvent, enable, modify or provide access, permissions or rights which would violate the technical restrictions of ERI Software, any additional licensing terms provided by ERI via product documentation, email notification and/or policy change on ERI website, and/or the terms of the End User License Agreements of ERI products; (b) disable, remove, over-ride or modify the display of any ERI product End User License Agreements to the end customers; or (c) upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware.
Printable copy of license agreement in Adobe PDF format.