SOFTWARE END USER LICENSE AGREEMENT (FMTP Power GridEx Software)
Important, read this agreement carefully. By downloading, installing or using all or any portion of the software, you are accepting all of the terms and conditions of this agreement. You agree that this agreement is enforceable like any written agreement.
If you do not agree to all of these terms and conditions, do not use or access the software. If you have paid a license fee for use of the software and do not agree to these terms, you may return the software for a full refund, provided you (a) do not use the software and (b) return the software within thirty (30) days of your initial purchase.
By agreeing to these terms and conditions, you represent that you are 18 years old or older and capable of entering into a legally binding agreement.
If you wish to use the software as an employee, contractor, or agent of a corporation, partnership or similar entity, then you must be authorized to sign for and bind the entity in order to accept the terms of this agreement. The licenses granted under this agreement are expressly conditioned upon acceptance by such authorized personnel.
If an executed agreement exists between you and FMTP Power at any time regarding the Software, the terms of that agreement shall supersede the terms of this Agreement in its entirety. Thus, if you enter into a separate written agreement with FMTP Power regarding the Software, that agreement (not this one) will control your use of the Software; and further if that agreement is terminated, you will not have the right to use the Software under the terms of this Agreement after termination.
This Software End User License Agreement ("Agreement") is between FMTP Power AB, located at Post Box 8, 19521 Märsta - Stockholm SWEDEN , or the affiliate identified on the Order Form, and its affiliates ("FMTP Power") and the customer (individual or entity) that has downloaded or otherwise procured the licensed Software (as defined below) for use as an end user ("you"). This Agreement covers any Software and supporting user or technical documentation provided with the Software ("Documentation").
"Effective Date" means the earlier of the date you sign an Order Form or the date on which the Software is first made available to you.
"Order Form" means any order (which includes without limitation online orders) which is entered into by FMTP Power (or an authorized FMTP Power distributor or reseller) and you under which you are provided the Software. Each Order Form for the Software shall be deemed a part of this Agreement. This Agreement is binding on you whether or not you executed an Order Form with FMTP Power. Order Forms may not vary the terms of this Agreement. Only a written agreement, signed by FMTP Power (not a FMTP Power Supplier) may vary the terms of this Agreement.
"FMTP Power Content" means models, style, files, templates, and other similar materials and content owned by or licensed to FMTP Power and/or its affiliates whether or not proprietary, which are made available to you through the Software.
"Software" means the FMTP Power software product(s) for desktop, mobile or server computing devices (including without limitation, GridEx Software and Firmware) provided in connection with this Agreement in object code form (or as otherwise specified in any related Order Form), including any GridEx Software Extensions bundled and included with any of the foregoing at the time of the initial purchase. "Software" shall also include any releases provided to or purchased by you under any separate support and maintenance agreement you may enter into with FMTP Power. Unless otherwise noted, the Software, FMTP Power Content and Documentation are referred to collectively herein as "Software."
"Third-Party Software" means any third-party software that is provided to you by FMTP Power under separate terms and conditions.
"FMTP Power Supplier" means either FMTP Power or an authorized distributor or reseller of FMTP Power products or services which has entered into an Order Form with you.
2.1. Grant of License
Subject to all of the terms and conditions of this Agreement, FMTP Power grants you a non-transferable, non-sub-licensable, non-exclusive, worldwide license to use the Software in machine-readable form on any computer and operating system for which it was intended, but solely: (a) in accordance with the Documentation; and (b) in accordance with any additional license term, subscription term or other user, seat, computer, field of use or other restrictions set forth in the applicable Order Form or otherwise specified upon purchase. Subject to the terms and conditions of this Agreement, FMTP Power grants you a non-transferable, non-sub-licensable, non-exclusive license to input, upload, download, reproduce, adapt, make derivative works based on, publicly perform and display, and modify the FMTP Power Content available through the Software in connection with the normal course of the operation of such Software.
2.2. License Terms
2.2.1. GridEx Software
GridEx Software may be used for commercial purposes in accordance with the terms of this Agreement.
FMTP Power may make available the Software and Documentation by digital media, or for download in electronic form. FMTP Power shall also provide you with electronic passwords or other enabling mechanisms if necessary to permit the licensed usage of the Software. All licenses shall commence, and delivery shall be deemed to occur, as of the Effective Date (or, if later, such date on which the Software and license keys are first made available to you). If your Order Form is with a FMTP Power Supplier, that FMTP Power Supplier (and not FMTP Power) is solely responsible for delivery to you and FMTP Power has no liability for any failure to deliver. If the Software requires license keys to operate as licensed to you, FMTP Power or the applicable FMTP Power Supplier will deliver such license keys to you.
2.4. Software intended to be installed on GridEx Hardware
You may copy and install on your GridEx for use only by your employees the number of copies of the Software for which you have paid the applicable license fee. You should not transfer the Software from one GridEx to another GridEx.
2.5. License Restrictions
You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (c) remove any product identification, proprietary, copyright, or other notices contained in the Software; (d) copy (except as expressly permitted in this Agreement), modify or translate any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by FMTP Power; (e) attempt to circumvent or disable the security key mechanism that protects the Software against unauthorized use (except and only to the extent that applicable law prohibits or restricts such restrictions); (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.; or (g) use or host the Software in a virtual server environment.
2.7. Educational and Demonstration Versions
If you are a qualified instructor at an accredited educational institution, or you are an enrolled student at an accredited educational institution and use the Software in your classwork, you may use the Software for classroom teaching purposes, and classwork purposes ("Educational and Demonstration Version"). This includes installation and use of the Software in teaching labs at an educational institution, provided that use of the Software is by enrolled students who are engaged in classroom learning activities at the educational institution. However, if you are an employee of an educational institution and your job responsibilities are not those of a qualified instructor, you must purchase a GridEx Software commercial license. Educational Versions of the Software are for educational purposes only and may not be used for commercial, professional or other for-profit purposes. For example, but not as a limitation, if you are employed as a member of the professional staff of an educational institution such as the facilities management team, you are considered to be engaged in for-profit activity and you must purchase a GridEx Software commercial license. In addition, other terms and conditions may apply to Educational Versions including without limitation, screening or author criteria as may be set by FMTP Power from time-to-time. Please contact FMTP Power for additional information. Educational Versions are licensed for a one year term unless specified otherwise in the Order Form. Upon expiration of the one year term, your right and license to use the Educational Version of the Software expires and the Software will automatically become inoperable. Qualified instructors, students and institutions may purchase a license for an Educational Version of the Software annually upon meeting all program requirements described in this section.
3. Software Activation and Metering; Software Updates; Consent to Use of Data; Privacy
3.1. Software Activation and Metering
FMTP Power may use your internal network and Internet connection for the purpose of transmitting license-related data at the time of installation, registration, use of or update to the Software, and for validating the authenticity of the license-related data in order to register your Software and protect FMTP Power against unlicensed or illegal use of the Software.
FMTP Power may include in the Software, a built-in license metering technology that helps you avoid any unintentional violation of this Agreement. You acknowledge that such metering module may send FMTP Power on-line notification confirming use of the Software. You will not disable, modify or interfere with the operation of any such module. FMTP Power may use your internal network for license metering.
FMTP Power will use information obtained per this Section 3.1 only for the purpose stated in this Section 3.1.
3.2. Software Updates
As registered User you will be notified and informed you when Updates to the Software are available. Likewise, you will need to take action to download and install the software on your computer as this action does not happen automatically. "Updates" include maintenance releases, bug fixes, and minor updates to your current version of the Software.
3.3. Consent to Use of Data
FMTP Power may, directly or through third parties, collect and use technical information, information about you, and/or data that you provide in relation to your use of the Software or the provision of maintenance and technical support for the Software. FMTP Power will not use such information in a form that personally identifies you except to the extent necessary to provide maintenance and technical support, or to enhance your use of the Software including requesting feedback on the Software, providing critical updates, notifications regarding pre-release Software, or to improve the Software. You acknowledge that, to the extent permitted by law, FMTP Power assumes no responsibility for storage of your data or information.
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, FMTP Power and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
You shall pay all fees associated with the Software licensed and any services purchased hereunder as set forth in the applicable Order Form. All payments shall be made in advance prior to delivering a Software license, unless otherwise specified in writing by FMTP Power or the applicable FMTP Power Supplier. Except as expressly set forth herein, all fees are non-refundable once paid. You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of FMTP Power or the FMTP Power Supplier).
6. Term of Agreement
This Agreement is effective as of the Effective Date and expires at such time as all license and subscriptions hereunder have expired in accordance with their own terms (the "Term"). You may also terminate this Agreement at any time by permanently deleting the Software in its entirety. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). If you have entered into a separate written agreement with FMTP Power which governs the Software and that agreement is terminated, then this Agreement automatically terminates and you shall no longer have any right to use the Software. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. For clarity, even if you have entered into an Order Form with a FMTP Power Supplier, you agree that FMTP Power is a third party beneficiary to that Order Form and has the right to terminate this Agreement as set forth in this Section 6 (Term of Agreement).
Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof and so certify to FMTP Power in writing.
Sections 2.5 (License Restrictions), 4 (Ownership), 5 (Payment), 6.3 (Survival), 7 (Warranty Disclaimers), 9 (Indemnity), 10 (Limitation of Remedies and Damages), 11 (Confidential Information), 12 (Export Compliance; Compliance with Laws), and 13 (General) shall survive any termination or expiration of this Agreement.
7. Warranty Disclaimers
The software and all services are provided "as is." neither FMTP power nor its suppliers makes any other warranties, conditions or undertakings, express or implied, statutory or otherwise, including but not limited to warranties of title, merchantability, and fitness for a particular purpose or non-infringement. FMTP power makes no warranty (i) that the software will meet your requirements, (ii) that the software will be error-free or bug-free, (iii) regarding the security, reliability, timeliness, or performance of the software, (iv) that any errors in the software will be corrected, and (v) regarding the results or output of the software. You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the limited warranty period. FMTP power makes no warranties with respect to any third party components of the software.
8. Support and Maintenance
FMTP Power provides the support and maintenance services for GridEx Software for an additional fee pursuant to its standard service terms which are available upon request from FMTP Power or at http://www.fmtppower.com/software-license-agreement Support and maintenance services are not available for GridEx Software Make.
You agree to hold harmless and indemnify FMTP Power and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to your misuse of the Software or your violation of this Agreement, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, FMTP Power will provide you with written notice of such claim, suit or action.
10. Limitation of Remedies and Damages
10.1. Waiver of Certain Damages
Neither FMTP power nor its suppliers shall be liable for any loss of use, lost data, failure of security mechanisms, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits or data), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.
10.2. Limitation of Liability
Notwithstanding any other provision of this agreement, FMTP power and its suppliers' entire liability to you under this agreement shall not exceed the amount actually paid by you to FMTP power under this agreement.
10.3. Disclaimer for High Risk Activities
The software is not fault tolerant and is not designed, manufactured or intended for use in life support, medical, emergency, mission critical or other strict liability or hazardous activities ("high risk activities"). FMTP power specifically disclaims any express or implied warranty of fitness for high risk activities. You represent and warrant that you will not use the software (or permit it to be used) for high risk activities, and agree that FMTP power will have no liability for use of the software in high risk activities. You agree to indemnify and hold harmless FMTP power for any damages, liabilities or other losses resulting from such use.
10.4. Survival of Limitation of Remedies and Damages
The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11. Confidential Information
Any software, documentation or technical information provided by FMTP Power (or its agents) shall be deemed "FMTP Power Confidential Information" without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any FMTP Power Confidential Information. You acknowledge that disclosure of FMTP Power Confidential Information would cause substantial harm to FMTP Power that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, FMTP Power shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
12. Compliance with Laws
12.1. Compliance with Laws
You are responsible for complying with all applicable laws, regulations and codes of practice in your use of the Software and any results derived from the Software.
This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. FMTP Power may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of FMTP Power's assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without FMTP Power's written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3. Governing Law; Jurisdiction and Venue
13.3.1. If you obtained this Software in the European Union, this Agreement is governed by the laws of Sweden, excluding its rules governing conflicts of laws and without regard to the United Nations Convention on the International Sale of Goods. In such case jurisdiction and venue for actions related to the subject matter hereof are the courts of Stockholm, Sweden and both parties hereby submit to the personal jurisdiction of such courts.
13.4. Notices and Reports
Any notice or report hereunder shall be in writing. If to FMTP Power, such notice or report shall be sent to FMTP Power at the address above to the attention of "Legal Department". If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.
13.5. Amendments; Waivers
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
13.6. Entire Agreement; English Language Version
13.7. Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
13.8. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license or changes in law or regulations by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure event at reasonable cost.
Upon FMTP Power's written request, you shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement (including any restrictions in the applicable Order Form). FMTP Power, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit your records and use of the Software to confirm your compliance with this Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does unreasonably interfere with your business activities. You are responsible for such audit costs only in the event the audit reveals that your use is not in accordance with the licensed scope of use and for unpaid license fees.
13.10. Publicity; Press Releases
You shall not issue or make any press releases, publications or public references regarding your relationship with FMTP Power unless you first inform FMTP Power of such proposed publicity, submit all proposed publicity materials to FMTP Power for review and obtain FMTP Power's prior consent in writing, in each particular instance.
13.11. Government End-Users
The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement. The Software was developed fully at private expense. All other use is prohibited.
13.12. Third-Party Software and Content
13.12.1. Third-Party Software
If designated in the Documentation, the Software may contain or be provided with certain Third-Party Software (including Open Source Software or other software which may be made available to you in source code form). Such Third-Party Software is not licensed hereunder and is licensed pursuant to the terms and conditions ("Third-Party License") indicated in the Documentation, via a click through acceptance of terms and conditions, and/or on the Third-Party Software. Except as may be set forth in the Third-Party License, neither FMTP Power nor FMTP Power Suppliers offer any warranty in connection with any Third-Party Software and neither FMTP Power nor FMTP Power Suppliers shall be liable to you for such Third-Party Software. "Open Source Software" means any "open source" code (as defined by the Open Source Initiative), "free" code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.
GridEx Software End User License Agreement, Version 01A, March 2016
FMTP Power AB | Post Box 8, 19521 Marsta - Stockholm SWEDEN