Factory four end user license agreement

IMPORTANT - READ THIS AGREEMENT CAREFULLY:

THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND INDUCTIVE AUTOMATION, LLC. BY CLICKING ACCEPT, INDICATING ACCEPTANCE ELECTRONICALLY, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AGREE TO THIS EULA, INCLUDING THE LIMITED WARRANTY, DISCLAIMERS AND LIMITATION OF LIABILITY PROVISIONS. IF THE INDIVIDUAL PERSON ACCEPTING THESE TERMS IS ACTING ON BEHALF OF ANOTHER PERSON, COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT IT HAS FULL AUTHORITY TO BIND THAT OTHER PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.

YOU ACKNOWLEDGE AND AGREE THAT YOU WILL LOOK ONLY TO INDUCTIVE AUTOMATION, LLC FOR ISSUES OF ANY KIND RELATING TO THE SOFTWARE OR DOCUMENTATION, AND RELEASE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST ANY AFFILIATE OF INDUCTIVE AUTOMATION, LLC WITH WHOM YOU MAY HAVE PREVIOUSLY CONTRACTED WITH REGARDING LICENSING OF THE SOFTWARE AND DOCUMENTATION.

IF YOU DO NOT WANT TO ACCEPT THE TERMS OF THIS EULA, YOU SHOULD NOT CLICK ACCEPT, DOWNLOAD, INSTALL OR USE THE SOFTWARE, AS DOING ANY OF THE FOREGOING CONSTITUTES YOUR BINDING ACCEPTANCE OF THE TERMS OF THIS EULA.

  1. DEFINITIONS.
    1. “Activation Key” means an alphanumeric code that enables You to activate and use the Software.
    2. “Affiliates” means entities that Control, are Controlled by, or are under common Control with a party.
    3. “Confidential Information” has the meaning set forth in Section 7.1.
    4. “Control” (including the terms “Controlled by” and “under common Control with”) means authority which an entity has over another entity through any of the following, directly or indirectly: (i) ownership of 50% or more of the share capital or other ownership interest in such other entity; (ii) the right to exercise 50% or more of the votes in such other entity; (iii) the contractual right to designate more than half of the members of such other entity’s board of directors or similar executive body; or (iv) by virtue of any power conferred by the Laws, constitutional documents, agreements or arrangements regulating or relating to such undertaking.
    5. “Disclosing Party” has the meaning set forth in Section 7.1.
    6. “Documentation” means the then-current information regarding the Software that is provided or made available to You by Inductive Automation either in print or electronic form, and which may include end user manuals, operation instructions, installation guides, release notes and online help files regarding the use of the Software.
    7. “Evaluation Instance” means an Instance of the Software that has not been activated using an Activation Key provided by Inductive Automation.
    8. “Export Laws” has the meaning set forth in Section 12.1.
    9. “High Risk Activities” has the meaning set forth in Section 11.
    10. “Inductive Automation” means Inductive Automation, LLC, a California limited liability company, having a principal place of business at 90 Blue Ravine Road, Folsom, California 95630, USA.
    11. “Instance” means a single copy of the Software running on a single physical or virtual machine.
    12. “IP Claim” has the meaning set forth in Section 9.
    13. “Laws” means all applicable international, federal, state and local laws, including common laws, ordinances, codes, rules and regulations.
    14. “Receiving Party” has the meaning set forth in Section 7.1.
    15. “Registered Instance” means an Instance of the Software that has been activated by You using an Activation Key provided by Inductive Automation. If such Activation Key is subsequently used to activate a different Instance of the Software, then the first Instance of the Software will automatically cease to be a Registered Instance.
    16. “Representatives” has the meaning set forth in Section 7.1.
    17. “Reseller/OEM Product” means a product into which a system integrator or original equipment manufacturer has integrated the Software.
    18. “Software” means the Ignition® software program, Inductive Automation software modules and all versions, enhancements, modifications, improvements, derivatives, updates and new releases thereof.
    19. “Supplemental Terms” means those separate terms and conditions that apply to the Software and Documentation as set forth in a separately signed agreement between You and Inductive Automation such as a master agreement or enterprise agreement.
    20. “Support Services” means maintenance and support services, including updates, upgrades or enhancements to the Software, as described in Inductive Automation’s then-current maintenance and support program.
    21. “Taxes” has the meaning set forth in Section 5.2.
    22. “User” has the meaning set forth in Section 3.5.
    23. “You” and “Your” mean the person, company or other legal entity which is downloading, installing or using the Software, and any successor or assignee of same.
    24. “Your Responsible Claims” has the meaning set forth in Section 9.
    25. “Warranty Period” has the meaning set forth in Section 8.1.
    1. License Grant. You acknowledge and agree that the Software and Documentation are licensed, not sold. Subject to Your compliance with all the terms and conditions of this EULA, including, but not limited to, Your timely payment of all applicable license fees and Your compliance with the activation process, Inductive Automation grants You a worldwide, perpetual (subject to Section 13), personal, non-exclusive, non-transferable (except as set forth in Section 2.5) and non-sublicensable license to download, install and use the Software and Documentation solely for Your internal business purposes pursuant to the terms of this EULA. Inductive Automation reserves all other rights in and to the Software and Documentation not granted to You in writing herein.
    2. Limited Rights Versions. If the Software version You acquired is marked or otherwise identified as intended solely for a specific or limited use, then You may only use it as so specified. You may not use the following versions of the Software (i) for commercial or revenue-generating activities or (ii) except as expressly permitted by this Section 2.2, for the benefit of a tax-exempt charity or nonprofit.
      1. Maker Edition . Only for personal use by an individual.
      2. Educational Edition . Only for teaching and training purposes. You must be faculty or staff at an educational institution and use the Software only for teaching and training students. For the avoidance of doubt, educational use does not include research.
      3. Research Edition . Only for research purposes. You must be faculty, staff or a student at an educational institution and use the Software only for non-commercial academic research.
      1. Restrictions. You will not reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain any source code of the Software. You will not modify, adapt or create derivative works or improvements of the Software or Documentation. You will not work around or bypass any technical restrictions or limitations in the Software. You will not convert the Software or its parts to a different computer language or environment, either manually, or using an automated conversion tool, such that the Software or any modification thereof will run under any language, software or program other than that implemented by Inductive Automation. You will not remove, minimize, block or modify any logos, trademarks, copyright notices or other notices of Inductive Automation or its licensors that are included in the Software or Documentation. Except as expressly stated herein, You will not sublicense, rent, lease, sell, trade, resell, publish, transfer or lend the Software or Documentation without Inductive Automation’s written consent. You may not publish or publicly distribute any Activation Keys, serial numbers, access codes, unlock-codes, passwords or other end-user-specific registration information that would allow a third party to activate the Software without a valid license from Inductive Automation. You will not permit any third party to violate any of the restrictions set forth in this Section 3.1. The restrictions set forth in this Section 3.1 do not apply to the extent they conflict with mandatory applicable Laws.
      2. Hosted Systems. You acknowledge and agree that hosted commercial systems for the benefit of a third party are prohibited. You will not permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service or other arrangement.
      3. Security. You are responsible for the security of Your systems and data, including Software on Your systems. You are responsible for excluding code, files, scripts, agents or programs intended to do harm, including, for example, malware, viruses, worms, time bombs, spyware and Trojan horses.
      4. Third Party Claims You acknowledge that Inductive Automation does not control Your processes or the creation, validation, sale, or use of Your products. Inductive Automation will not be liable for any claim or demand made against You by any third party, except for Inductive Automation’s obligations to indemnify You against infringement claims as expressly set forth herein.
      5. Responsibility for Users. You are responsible for Your employees, agents, authorized contractors and other users (collectively, “Users”) with respect to the Software, the Documentation and this EULA. Without limiting the generality of the foregoing, any breach of this EULA by Your Users, or any actions or omissions of Your Users pertaining to the Software, the Documentation or this EULA, will be deemed to be Your breach, action or omission, as applicable. Any use of the Software by Your Users will be solely for Your internal business purposes.
      6. Audit. You agree that Inductive Automation may audit Your use of the Software for compliance with the terms and conditions of this EULA, upon reasonable notice. You agree to cooperate fully with Inductive Automation and its authorized agents in any such audit to assist in accurately determining Your compliance with the terms and conditions of this EULA. If such audit reveals any use of the Software by You other than in full compliance with the terms of this EULA, You will take all necessary action to bring Your usage into compliance and will pay Inductive Automation for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance.
      1. Payment Terms. You will pay Inductive Automation the applicable fees for the Software and Documentation within net 30 days from the date of invoice or as otherwise agreed by the parties in writing. Payments not made within the time required may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable Laws, whichever is lower.
      2. Taxes. All prices are exclusive of any taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto (collectively, “Taxes”). You agree to pay or reimburse Inductive Automation for the payment of any applicable Taxes or duties including, but not limited to, sales Taxes, value added Taxes, goods and services Taxes, consumption Taxes, and any withholding Taxes imposed by any government authority on Your use of or license to the Software and Documentation and on any payments made by You to Inductive Automation with respect thereto, excluding, however, income Taxes on profits which may be levied against Inductive Automation. If You are exempt from value-added or sales tax, then You must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation to Inductive Automation. Upon Your reasonable request, Inductive Automation shall provide you with a duly executed and properly completed IRS Form W-9. If You are required by Law to make any income tax deduction or to withhold income tax, after the application of reductions or exemptions available under applicable Law or international treaties, from any sum payable directly to Inductive Automation hereunder, You will promptly effect payment thereof to the applicable tax authorities, You will promptly provide Inductive Automation with official tax receipts or other evidence issued by the applicable tax authorities, and You will increase the sum payable to Inductive Automation as necessary so that after such deduction or withholding has been made (including such deductions or withholdings applicable to additional sums payable under this section), Inductive Automation receives an amount equal to the sum it would have received had no such deduction or withholding been made. For the avoidance of doubt, You are responsible for, and will indemnify Inductive Automation for, any Taxes, including withholding Taxes, resulting from making licenses available to users in geographic regions outside the country in which You are located.
      1. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this EULA, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Inductive Automation includes (i) the Software, (ii) the technology, ideas, know-how, documentation processes, algorithms and trade secrets embodied in the Software, (iii) any Activation Keys related to the Software, and (iv) the terms and conditions of this EULA and any Supplemental Terms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
      2. Exclusions. Confidential Information does not include information that: (i) is known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (iii) is received by the Receiving Party from a third-party without knowledge of any breach of any obligation owed to the Disclosing Party; or (iv) is or has been independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
      3. Use and Disclosure of Confidential Information. The Receiving Party will (i) not disclose Confidential Information of the Disclosing Party, except on a need-to-know basis to its employees, members, directors, officers, consultants and representatives (including, but not limited to, financial, tax and legal advisors) (collectively, “Representatives”), (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this EULA, and (iii) protect Confidential Information from unauthorized use or disclosure using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party (a) will ensure that all its Representatives receiving Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those herein, and (b) will be liable for compliance with this Section 7 by each of its Representatives.
      4. Permitted Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by a governmental agency, by operation of law, or if necessary, in any proceeding to establish rights or obligations under this EULA; provided, that the Receiving Party gives the Disclosing Party prior notice of the required disclosure (if permitted to do so under law) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
      5. Publicity. Inductive Automation may identify You as a customer (by name, logo or other mark) on its websites and in customer lists and other marketing materials.
      1. Limited Warranty. Inductive Automation warrants that the Software will conform in all material respects with the Documentation provided to You by Inductive Automation for a period of 90 days from the date You first use Your Activation Key to activate the applicable Instance of the Software (“Warranty Period”). This warranty will be void if the non-conformity is caused by Your failure to use the Software in accordance with the Documentation or comply with the terms and conditions of this EULA. Inductive Automation’s entire liability and Your exclusive remedy for breach of this warranty will be, at Inductive Automation’s option, to correct or work around errors, replace defective Software or refund the license fees actually paid by You for defective Software returned by You. Following the Warranty Period, Support Services, if purchased from Inductive Automation, will apply to address covered issues in the Software.
      2. Disclaimers. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS EULA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) INDUCTIVE AUTOMATION MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SOFTWARE OR DOCUMENTATION, AND (II) THE SOFTWARE AND DOCUMENTATION PROVIDED UNDER THIS EULA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. INDUCTIVE AUTOMATION EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE AND DOCUMENTATION, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERRUPTION OF USE AND FREEDOM FROM BUGS. INDUCTIVE AUTOMATION MAKES NO WARRANTY THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES INDUCTIVE AUTOMATION MAKE ANY WARRANTY THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE, SOFTWARE OR SERVICE. YOU ASSUME COMPLETE RESPONSIBILITY FOR DECISIONS MADE OR ACTIONS TAKEN BASED ON INFORMATION OBTAINED USING THE SOFTWARE. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY INDUCTIVE AUTOMATION OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY ADDITIONAL WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED IN THIS EULA. 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 INDUCTIVE AUTOMATION DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (B) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS OR NETWORKS. INDUCTIVE AUTOMATION WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. 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.
      1. Infringement Claim Indemnity. Inductive Automation will defend You against any claim, suit or action brought against You by a third party alleging that the Software or Documentation infringes such third party’s copyrights, patents or trademarks, in each case, granted or registered by the United States (“IP Claim”), and will indemnify You from any damages and costs (including reasonable attorney’s fees) finally awarded against You by a court of competent jurisdiction as a result of, or for amounts paid by You under a settlement approved by Inductive Automation in writing of, an IP Claim; provided, that You give Inductive Automation (i) written notice of any IP Claim within 15 days of Your receipt of such IP Claim (provided the failure to give such notice will not relieve Inductive Automation of its indemnification obligations except to the extent that Inductive Automation is prejudiced by such failure), (ii) the sole control of and authority over the defense and settlement of the IP Claim, and (iii) all requested information and reasonable assistance. Inductive Automation will not admit liability or incur obligations on Your behalf without Your written consent.
      2. Injunction. If a permanent injunction is obtained against Your use of the Software, Inductive Automation will, in its sole discretion: (a) modify the Software so that it is non-infringing; (b) replace the Software with non-infringing Software that is functionally equivalent in performance; (c) obtain a license for You to continue to use the Software as provided hereunder; or (d) terminate the license for the infringing Software, have You return or destroy such Software, and refund to You any license fees actually paid by You to Inductive Automation for such enjoined Software, amortized over 60 months from the date You first use Your Activation Key to activate the enjoined Software. Inductive Automation may, in its sole discretion, provide the remedies specified in this Section 9.2 to mitigate infringement prior to the issuance of an injunction.
      3. Exclusions. Notwithstanding anything to the contrary in this EULA, Inductive Automation will have no defense or indemnification obligations or liability to You if: (A) the IP Claim does not state with specificity that the Software or Documentation is the basis of the IP Claim; (B) the total aggregate fees Inductive Automation has received from You for the Software and Documentation under this EULA during the 12 months immediately preceding the IP Claim is less than $50,000 USD; or (C) an IP Claim is based upon or arises out of (I) compliance with Your instructions, specifications or designs, (II) the combination, operation or use of the Software or Documentation, or any part thereof, with any equipment, technology, software, processes or materials not provided by Inductive Automation, if the Software, Documentation or use thereof would not infringe without such combination, (III) Your failure to use the latest release or version of the Software (including any corrections, patches or enhancements) where such use would have prevented the IP Claim, (IV) modifications, enhancements, or derivatives of the Software not made by Inductive Automation, or (V) Your breach of this EULA or failure to comply with the Documentation (all of the items under clause (C), collectively, are referred to as “Your Responsible Claims”).
      4. Sole and Exclusive Remedy. THIS SECTION 9 STATES INDUCTIVE AUTOMATION’S SOLE OBLIGATION AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
      1. Export. Inductive Automation’s obligations under this EULA are conditioned upon Your compliance with, and You agree to comply with, all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including those of the United States (“Export Laws”). You represent that any Software or Documentation provided hereunder and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or unless expressly authorized by Inductive Automation in writing, or (iv) used for non-civilian purposes (e.g. armaments, nuclear activities, weapons, rockets, long-range unmanned aerial vehicles any other usage in the field of defense and military). Without limiting the foregoing, You represent and warrant that (a) You are not a Sanctioned Person, and (b) You will not download or otherwise access, or facilitate a third party’s download or access of, any Software or Documentation from a Sanctioned Country. You will, at least once per year, review and update Your list of Users who have access to the Software and Documentation and confirm that no such User is a Sanctioned Person and that all such Users may continue to access the Software and Documentation in compliance with Export Laws. Inductive Automation may conduct the necessary Export Laws checks and, upon request, You will promptly provide Inductive Automation with any necessary information. “Sanctioned Country” means a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions (currently Belarus, Cuba, Iran, North Korea, Russia, Syria, and certain regions of Ukraine). “Sanctioned Person” means any person (i) included on an export control or sanctions list of designated or blocked persons maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (ii) operating, organized, or resident in a Sanctioned Country; (iii) the government of, or acting for or on behalf of the government of, Afghanistan, Myanmar, Venezuela or a Sanctioned Country; or (iv) owned or controlled by one or more such persons.
      2. Remedies; Indemnification. In the event that You fail to comply with any provision of Section 12.1 or violate any Export Laws in connection with the Software or Documentation, Inductive Automation will have the right to act in accordance with the terms of this EULA and as required by U.S. law or the applicable law. Further, You will defend, indemnify and hold harmless Inductive Automation, its Affiliates and their respective officers, members, directors, employees, agents, successors, licensors and assigns against any losses, claims, damages, fines, and costs (including attorney’s fees and expenses) relating in any way to Your noncompliance with Section 12.1, including Your violation or alleged violation of any Export Laws; provided, that Inductive Automation reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any claims (and without limiting Your indemnification obligations with respect to such claims), and You agree to reasonably cooperate as requested by Inductive Automation in the defense of any claims.
      1. Severability. If any provision of this EULA is found by a competent judicial authority to be unenforceable in any respect, such provision will be limited or eliminated to the minimum extent necessary so that the remainder of this EULA will continue in full force and effect.
      2. Waiver. The failure by either party to enforce any provision of this EULA will not be construed as a waiver of such provision. No waiver of any rights under this EULA will be effective unless in writing signed by both parties, and the waiver of any breach or default will not constitute a waiver of any other right under this EULA or any subsequent breach or default.
      3. Entire Agreement.
        1. No Supplemental Terms . This EULA is the entire agreement between You and Inductive Automation relating to Your downloading, installation and use of the Software and the Documentation. You acknowledge and agree that this EULA controls all aspects of the relationship between the You and Inductive Automation with regard to the Software and Documentation and supersedes all written or oral statements, promises, representations and agreements between You and Inductive Automation, including, but not limited to, Your purchase orders and/or terms and conditions, and whether made or provided before or after Your acceptance of this EULA.
        2. Existing Supplemental Terms . Notwithstanding anything to the contrary in Section 15.3.1, during the time period that any separately signed Supplemental Terms are in effect between You and Inductive Automation, such separately signed Supplemental Terms will prevail over any inconsistent or conflicting terms of this EULA.