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END USER LICENSE AGREEMENT OPC MATERIALS (NON-MEMBERS) IMPORTANT NOTICE --- READ CAREFULLY THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU, AS NON-MEMBER OF THE OPC FOUNDATION (THE “LICENSEE” OR “YOU”), AND OPC FOUNDATION (“OPC FOUNDATION” OR “WE”). OPC FOUNDATION HAS ESTABLISHED A SET OF SPECIFICATIONS INTENDED TO FOSTER GREATER INTEROPERABILITY BETWEEN AUTOMATION/CONTROL APPLICATIONS, FIELD SYSTEMS/DEVICES, AND BUSINESS/ OFFICE APPLICATIONS IN THE PROCESS CONTROL INDUSTRY. THE OPC FOUNDATION’S SPECIFICATIONS DEFINE STANDARD INTERFACES, OBJECTS, METHODS, AND PROPERTIES FOR SERVERS OF REAL-TIME INFORMATION LIKE DISTRIBUTED PROCESS SYSTEMS, PROGRAMMABLE LOGIC CONTROLLERS, SMART FIELD DEVICES AND ANALYZERS. OPC FOUNDATION DISTRIBUTES SPECIFICATIONS, PROTOTYPE SOFTWARE EXAMPLES, BINARIES, DOCUMENTATION FILES, SOFTWARE, SOFTWARE CODE SAMPLES, SOFTWARE TOOLS, LIBRARIES, UTILITIES, PRINTED MATERIALS, DOCUMENTATION, SPECIFICATIONS, STANDARDS AND/OR RELATED DOCUMENTATION (COLLECTIVELY, THE "OPC MATERIALS") TO CERTAIN NON-MEMBERS AS PART OF WORKING GROUPS IN ORDER TO FACILITATE THE DEVELOPMENT OF OPC COMPLIANT APPLICATIONS. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE OPC MATERIALS. ALL USE OF THE OPC MATERIALS PROVIDED BY OPC FOUNDATION AND/OR BY ANY REPRESENTATIVE OR AGENT ON OPC FOUNDATION’S BEHALF ARE, AND SHALL BE, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. BY DOWNLOADING OR USING THE OPC MATERIALS OR ANY REVISIONS, CORRECTIONS, MODIFICATIONS, ENHANCEMENTS, BUG FIXES, UPDATES, UPGRADES, ANY OTHER RELEASE THERETO, AND/OR ANY PART THEREOF, CLICKING ON THE ‘ACCEPT’ BUTTON, OR OTHERWISE USING THE OPC MATERIALS, YOU ARE ACCEPTING THE AGREEMENT AND AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS LICENSE AGREEMENT AND THE OPC FOUNDATION INTELLECTUAL PROPERTY POLICY SHALL FORM THE ENTIRE AGREEMENT BETWEEN THE LICENSEE AND OPC FOUNDATION RELATING TO THE DOWNLOAD AND USE OF THE OPC MATERIALS, AND SHALL SUPERSEDE ANY PRIOR PROPOSAL, REPRESENTATION OR UNDERSTANDING BETWEEN LICENSEE AND OPC FOUNDATION AND/OR BETWEEN LICENSEE AND ANY REPRESENTATIVE OR AGENT ON OPC FOUNDATION’S BEHALF. BY ACCEPTING THIS AGREEMENT, LICENSEE REAFFIRMS ITS ACCEPTANCE OF THE OPC FOUNDATION INTELLECTUAL PROPERTY POLICY. IN THE EVENT OF A CONFLICT BETWEEN THIS LICENSE AGREEMENT AND THE OPC FOUNDATION INTELLECTUAL PROPERTY POLICY, THE OPC FOUNDATION INTELLECTUAL PROPERTY POLICY SHALL CONTROL. AS PART OF THIS LICENSE AGREEMENT, YOU MUST REGISTER WITH OPC FOUNDATION AND PROVIDE YOUR COMPANY NAME, PRIMARY CONTACT NAME, ADDRESS OF PRINCIPAL OFFICE, E-MAIL ADDRESS AND TELEPHONE NUMBER. ALL OPC MATERIALS, UNLESS EXPLICITLY DESIGNATED OTHERWISE, ARE ONLY AVAILABLE TO CURRENTLY REGISTERED PARTICIPANTS OF CERTAIN OPC FOUNDATION WORKING GROUPS (AN "ACTIVE PARTICIPANT"). IF YOU ARE NOT AN EMPLOYEE OR AGENT OF AN ACTIVE PARTICIPANT, THEN YOU ARE PROHIBITED FROM USING THE OPC MATERIALS AND ALL COPIES (IN ALL FORMATS) OF SUCH MATERIALS IN YOUR POSSESSION MUST EITHER BE DESTROYED OR RETURNED TO THE OPC FOUNDATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT CLICK ON THE ACCEPT BUTTON AND/OR DO NOT DOWNLOAD AND/OR INSTALL AND/OR PRINT AND/OR USE THE OPC MATERIALS, AND IMMEDIATELY DESTROY OR RETURN ALL COPIES (IN ALL FORMATS) OF THE OPC MATERIALS IN YOUR POSSESSION TO THE OPC FOUNDATION. Licensee may print and keep a copy of this Agreement. If You comply with these license terms, You have the rights and obligation set forth below: 1. LICENSE GRANT: a) Subject to the terms and conditions of this Agreement, the OPC Foundation hereby grants to Licensee, and Licensee accepts, a non-exclusive, royalty-free, limited license to use, copy, display and distribute (as set forth herein) the OPC Materials in order to make, use, sell or otherwise distribute any products and/or product literature that are compliant with the standards included in the OPC Materials. Licensee may not distribute OPC Materials outside of the Active Participant organization to which You belong unless the OPC Foundation has explicitly designated the relevant OPC Material for public use. b) All copies of the OPC Materials made and/or distributed by Licensee must include all copyright and other proprietary rights notices included on or in the copy of such materials provided to Licensee by the OPC Foundation. In other words, Licensee may not remove any copyright or other proprietary rights notices included on or in the OPC Materials. c) The following additional restrictions apply to all OPC Materials that are software source code, libraries or executables: i) Licensee must acknowledge the use of the OPC Materials and provide a link to the OPC Foundation home page www.opcfoundation.org from the About box of the Licensee’s or Active Participant’s application(s). ii) Licensee may include the source code, modified source code, built binaries or modified built binaries within Licensee’s own applications for either personal or commercial use; provided, however, that the source code, modified source code, built binaries or modified built binaries cannot be sold as is, either individually or together. In other words, while Licensee may use OPC Foundation’s software to enhance Licensee’s applications and to ensure compliance with the various OPC specifications, Licensee is prohibited from gaining commercially from the OPC software itself as a stand-alone module or platform. 2. PROPRIETARY RIGHTS; NON-DISCLOSURE. a) The OPC Materials are not for sale and shall remain the sole property of OPC Foundation and its licensors. All intellectual property rights (including, without limitation, copyrights, patents, trade secrets, trademarks, etc.) evidenced by or embodied in and/or attached/connected/related to the Software are and shall be owned or controlled solely by OPC Foundation and its licensors. The OPC Materials are owned only by OPC Foundation or its licensors and are protected by United States copyright, patent, trade secret and other laws and international treaty provisions. This Agreement does not convey to You an interest in or to the OPC Materials, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of OPC Foundation’s intellectual property rights under any law. Licensee understands and acknowledges that the OPC Materials may contain or include proprietary confidential information and trade secrets of OPC Foundation and its licensors. Unless the OPC Foundation has explicitly designated the OPC Material for public use, Licensee shall take all reasonable steps to safeguard all confidential information and trade secrets with the same degree of care used to safeguard Your or Your company’s own trade secrets and confidential information, but no less than a reasonable degree of care. b) Licensee acknowledges and agree that any breach of these terms and conditions will cause irreparable harm and injury to OPC Foundation for which monetary damages may not be adequate remedies. Therefore, Licensee agrees that OPC Foundation shall be entitled to injunctive and/or other equitable relief without the requirement to post a bond or prove monetary damages, in addition to all other remedies provided under this Agreement or available at law or equity. c) Licensee acknowledges and agrees that the OPC Materials are provided with restricted rights. Use, duplication or disclosure by the U.S. government is subject to restrictions as set forth in (i) this Agreement pursuant to DFARs 227.7202-3(a); (ii) subparagraph (c)(1)(i) of the Rights in Technical Data and Computer Software clause at DFARs 252.227-7013; or (iii) the Commercial Computer Software Restricted Rights clause at FAR 52.227-19 subdivision (c)(1) and (2), as applicable. Contractor/ manufacturer is the OPC Foundation, 16101 N. 82nd Street, Suite 3B, Scottsdale, AZ 85260-1830, USA. 3. WARRANTIES: a) Licensee Warranty. Licensee represents and warrants that: (a) it is a current and Active Participant of an OPC Foundation Working Group and it has the right and authority to enter into this Agreement; (b) all information supplied by Licensee during the registration process is true, accurate, current and complete; and (c) Licensee will comply with the terms and conditions of this License Agreement. b) Disclaimer of OPC Foundation Warranty. Licensee acknowledges that the OPC Foundation has provided the OPC Materials for informational purposes only in order to help You understand the relevant OPC specifications. THE OPC MATERIALS ARE LICENSED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. OPC FOUNDATION AND ITS LICENSORS HEREBY DISCLAIM ANY DUTY OR COMMITMENT TO PROVIDE ANY FIX OR CORRECTION TO ANY PROBLEM, BUG, DEFECT OR DEFICIENCY IN THE OPC MATERIALS. LICENSEE BEARS ALL RISK RELATING TO QUALITY, DESIGN, USE AND PERFORMANCE OF THE OPC MATERIALS. OPC FOUNDATION AND ITS LICENSORS DO NOT WARRANT THAT THE OPC MATERIALS WILL BE ERROR FREE, OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO TO THE EXTENT THAT THEY ARE EXCLUSIONS OF IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. 4. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. NEITHER OPC FOUNDATION NOR ITS LICENSORS SHALL BE LIABLE TO LICENSEE FOR ANY DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE AND SIMILAR DAMAGES (WHETHER FOR LOSS OF PROFIT, LOSS OF BUSINESS, DEPLETION OF GOODWILL OR OTHERWISE), COSTS, EXPENSES OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION WHATSOEVER (HOWSOEVER CAUSED) WHICH ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, TERMINATION OF THIS AGREEMENT, EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. THIS LIMITATION OF LIABILITY PROVISION CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT, AND OPC FOUNDATION WOULD NOT LICENSE THE OPC MATERIALS TO YOU WITHOUT SUCH LIMITATION. IF ANY LIABILITY IS IMPOSED ON OPC FOUNDATION OR ITS LICENSORS, OPC FOUNDATION AND ITS LICENSORS' TOTAL LIABILITY TO YOU SHALL NOT EXCEED TWO HUNDRED AND FIFTY DOLLARS ($250.00). THESE LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF ANY OF THE EXCLUSIVE REMEDIES PROVIDED FOR IN THIS AGREEMENT. This limitation applies to anything related to the OPC Materials, services, content (including software code) on third party Internet sites, or third party programs. The above limitation or exclusion may not apply to You because Your country may not allow the exclusion or limitation of incidental, consequential or other damages. 5. DISPUTE RESOLUTION. Any controversy or claim arising out of or relating to this Agreement or the breach hereof shall be settled as follows: Both parties shall for not more than 30 days first attempt in good faith to promptly resolve the dispute by negotiations between their respective authorized representatives. If such dispute cannot be so resolved, either party may seek final and binding arbitration (“Arbitration”) by a single arbitrator administered by the American Arbitration Association in accordance with its International Arbitration Rules (the “Rules”) in force when the notice of Arbitration is submitted in accordance with the Rules. Any Arbitration hearing shall be held in Cleveland, Ohio, United States of America in the English language. Judgment on any such Arbitration award may be entered in any court of competent jurisdiction. The prevailing party in any such Arbitration or related legal proceeding shall receive its reasonable attorneys’ fees and legal costs thereby incurred in addition to any other relief that may be granted. 6. ASSIGNABILITY. This Agreement shall inure to the benefit of OPC Foundation, its successors and assigns, but will be personal to Licensee, and shall be assignable by Licensee only with the prior written consent of OPC Foundation. Licensee shall not mortgage, assign, sub-license, or otherwise encumber this Agreement without the prior written consent of OPC Foundation. OPC Foundation shall be entitled to assign this Agreement to any third party with notice to Licensee. 7. TERM/TERMINATION a) This Agreement and the license granted may be terminated, in whole or in part, by OPC Foundation upon the happening of one or more of the following events: (i) if Licensee or Licensee’s company is no longer an Active Participant with an OPC Foundation Working Group; (ii) if Licensee materially breaches the terms of this Agreement; (iii) if Licensee’s company is adjudicated bankrupt and a receiver or trustee is appointed for Licensee’s company or if an assignment is made for the benefit of creditors; or (iv) if Licensee fails to notify OPC Foundation of any sale or transfer of ownership of, or any change in the legal status of Licensee’s company that would in any way affect this license or OPC Foundation’s rights in the OPC Materials. b) This Agreement shall automatically terminate upon the happening or one or more of the following events: (i) by Licensee’s ceasing all use of the OPC Materials or (ii) by Licensee’s obtaining a superseding version of the OPC Materials and accepting a superseding License Agreement thereto. c) Upon the expiration or termination of this Agreement: (i) the license granted to Licensee in this Agreement shall expire and Licensee, upon termination, shall discontinue all further use of the Software; (ii) Licensee shall immediately cease all use of the OPC Materials; (iii) Licensee shall erase/delete any of the foregoing held by Licensee in electronic form; and (iv) Licensee shall take such other actions as the OPC Foundation may reasonably request to ensure that no copies of the OPC Materials licensed under this Agreement remain in its possession. Licensee shall certify to OPC Foundation in writing that Licensee has complied with the requirements of this Section. d) Sections 2, 3, 4, 5, 7 (c) and (d), 8 and 9 shall survive any termination of this Agreement. 8. EXPORT RESTRICTIONS. The Software should not be transferred or exported into any country or used in any manner prohibited by applicable law. It is stipulated that the Software is subject to certain export control laws, rules, and/or regulations, including without limitation, those of the United States. Licensee agrees to fully comply with all such export/import laws as are set forth herein and any update made thereto from time to time. Licensee agrees to indemnify, defend, and hold OPC Foundation, its officers, directors and employees harmless from and against any claims, liabilities, demands, penalties, fines and costs resulting from Licensee’s failure to comply with these requirements. 9. GENERAL. Neither party is deemed an agent of the other. Notices must be in writing, given by mail or by facsimile followed by mail, signed by an officer of the party giving same, and will be deemed given seven days after deposit in the mail or on the date of facsimile transmission. No delay or failure to enforce any rights under this Agreement will be deemed a continuing waiver of such rights. The provisions of this Agreement are severable and if any part of this Agreement is rendered invalid or unenforceable, the remaining parts shall continue and be valid and enforceable. Neither party shall be responsible or liable for failure to fulfill its obligations under this Agreement due to causes beyond its control, including without limitation, delays in delivery of the Software. I HAVE READ AND UNDERSTOOD THIS LICENSE AGREEMENT AND AGREE TO BE BOUND BY ALL THE TERMS.
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