END-USER LICENCE AGREEMENT ("EULA") IKATRON SOLUTIONS PTY LTD (IKS AUTOMATION) FOR iMCA Software, iMCA Server™ and iMCA Controller™
IMPORTANT: PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING THIS AGREEMENT AND/ OR INSTALLING AND USING THE iMCA SERVER SOFTWARE / CONTROLLER (THE "SOFTWARE"). BY INSTALLING, COPYING OR USING THE SOFTWARE, YOU WILL BE DEEMED TO HAVE ACCEPTED AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND PROPRIETARY INFORMATION AGREEMENT (THE "AGREEMENT") BETWEEN YOU AND IKATRON SOLUTIONS PTY LTD ("IKATRON").
Use of the Intelligent Monitoring Control and Automation (iMCA) Server Software (or Controller) product purchased by you is conditioned upon acceptance and compliance by you with this licence. By installing, copying or using the iMCA Server or the iMCA Controller product you will be deemed to have accepted and agreed to be bound by this licence.
You also acknowledge that the iMCA Server / Controller from time to time may communicate with IKATRON's back end server via any of available protocols including (but not limited to) TCP, UDP, FTP, SMTP for diagnostics, updates, notifications or licence compliance with or without any explicit notification and without accessing any of your personal details.
If you do not agree to accept or be bound by this licence or the Terms and Conditions of Service do not buy, install or use the iMCA Server or iMCA Controller product and promptly remove the iMCA Server software product and any copies from your Computer and return the software or the iMCA Controller to the Licensor.
1.1 This licence is being granted by IKATRON SOLUTIONS PTY LTD ("IKATRON"), a company incorporated in the State of Victoria, Australia.
2.1 "Client Access Licence" or "CAL" means a Licence for an individual user or organisation to access the Software and its functionality. Each CAL is restricted to a single iMCA Server or Controller Device and is specific to the iMCA Server's Software. CAL's that you acquire may not be used in conjunction with the licensed Software by any one other than you. Each required CAL must be of the same or a later version as the Software.
2.2 "Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
2.3 "Documentation" means our standard user documentation containing instructions for the installation, operation and use of the Software.
2.4 "Device" may include (but is not limited to) a personal computer (PC), portable computer, PDA, tablet, touch screen LCD, mobile phone, iPhone, or iPod Touch.
2.5 "Licence Fees" means the sum of Licence fees and first year upgrade fees for the Software as specified in the then-current price list published by us or in the Purchasing Document.
2.6 "Licensed Computer" means a single Computer or Device unless otherwise specified in the Purchasing Document.
2.7 "Purchasing Document" means an invoice, Licence certificate or other similar written document provided to you by us or our authorized reseller and executed by us or our authorized reseller's duly authorized signatory.
2.8 "Software" and the iMCA term for "Software" means one or more of the following components of the proprietary automation solution known as iMCA System:
iMCA: intelligent Monitoring Control and Automation.
iMCA Application Modules: iMCA Software Modules offered commercially.
iMCA Product: iMCA Software in commercially available packages such as iMCA Server or iMCA Controller containing any of iMCA Software Modules delevered as downloadable package, virtual machine package, compact flash or turn-key box.
iMCA Software (also refered as SOFTWARE in this agreement): a specialized computer application that enables you to monitor, control and automate virtually anything from anywhere, seamlessly integrating with different automation technologies, switching, remote terminal and sensing units and devices. It can be described as a universal, rapidly deployable, scalable, service oriented, cross platform middleware framework with a powerful Graphic User Interface for enabling IP-based monitoring, control and automation of all types of environments - residential, commercial, industrial and scientific.
iMCA Server: Consists of Windows or Unix/Linux operating system, iMCA Application Modules and all necessary, properly configured services of the operating system required for the iMCA Software. iMCA Server is always includes iMCA Software.
iMCA Controller (refered also as HARDWARE in this agreement): iMCA Server running on physical, Intel based hardware - standard, server or embedded class computer. iMCA Controller is always includes iMCA Server.
iMCA System: iMCA Controller plus all switching/sensing/remote terminal units and sensor devices integrated with the iMCA controller. iMCA System always includes an iMCA Controller.
Software / Hardware (Software and (or) Hardware) means iMCA Software containing any of iMCA Software Modules delevered as downloadable package, virtual machine package, compact flash, turn-key box as preinstalled and configured iMCA Controller or in any other shape or form determined by the intelectual property owner.
2.9 "Updates" means patches, new versions, releases and updates of the Software. Such Updates shall be included in the definition of "Software" and be subject to the terms and conditions of this EULA.
2.10 "Upgrade Fee" means the annual fee paid in advance for Upgrade Services equal to X% of the then-current Licence price for the Software published by us in our price list.
2.11 "Upgrade Service" means the right to use Updates along with other generally available technical material but does not include support or other professional services.
2.12 "Upgrade Term" means the 12 month period starting from the commencement of the term of this EULA and automatically expiring unless extended by payment of a Upgrade Fee for an additional 12-month period.
2.13 "Use" or "using" means to access, install, copy or otherwise benefit from using the functionality of the Software.
2.14 "We" or "our" or "us" means the Licensor.
3. Licence Grant.
3.1 Subject to payment of the Licence Fees, we grant to you for your own internal use a nonexclusive, non-transferable Licence ("Licence") to use the iMCA Product, subject to the terms and conditions of this EULA.
3.2 The Software and all copies that you make are the intellectual property of and are owned by us and our suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of us and our suppliers. The Software is protected by law, including without limitation the copyright laws of Australia and other countries, and by international treaty provisions. Except as expressly stated herein, this EULA does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by us and our suppliers.
3.3 You must reproduce all copyright, trade-mark and other notices that are marked on the Software on all copies of the Software that you are permitted to make hereunder.
3.4 The Licence Fees are payable to us or our authorized reseller and are net of any taxes.
3.5 The Software may include one or more third party components (including Operating System and its elements) and may be sold together with third party hardware (such as IP Sensors, Switches, Remote Terminal Units, etc). This Licence is granted to you subject to your acceptance of and compliance with all terms and conditions of each of the third party Licence agreements, copies of which can be provided on request where applicable.
3.6 You may only make copies of the Software for archive or back-up purposes and you may make no more than are reasonably necessary. All such copies shall be subject to this EULA and shall contain a copy of this EULA as well as all notices regarding copyrights, trade-marks and other proprietary rights.
3.7 You agree that all copyright and other proprietary notices associated with the SOFTWARE / HARDWARE shall be visible to all users of the SOFTWARE. You agree not to remove any copyright or other proprietary or product identification notices from the SOFTWARE / HARDWARE and Written Materials.
4.1 The term of the Licence commences upon receipt in full of the Licence Fees is determined and stipulated in the Purchasing Document.
5.1 Without prejudice to any other rights, we may terminate this EULA if you are not in compliance with all the terms and conditions of this EULA.
5.2 In case we terminate this EULA due to your non-compliance with the terms and conditions of this EULA, all Licence Fees and Upgrade Fees shall be non-refundable.
5.3 Following the termination of the Licence as set out herein, you must stop using iMCA Server or iMCA Controller in any shape or form and destroy all copies of the Software and Documentation.
5.4 The provisions of Sections 6 shall continue in full force and effect even after the termination of this EULA, howsoever caused, but this shall not imply or create any continued right to use the Software after termination of this EULA.
6. Ownership of the Software.
6.1 IKATRON or its licensors may have patents or pending patent applications, trademarks, copyrights, trade secret rights or other intellectual property rights covering the Software and all materials delivered to you along with the Software (user manuals and other documentation).
6.2 You acknowledge that the Software and such materials are the property of IKATRON or its licensors and that the only rights you have with respect to the Software and related materials is the right to use them in accordance with the terms of this licence.
6.3 The Software is protected by applicable intellectual property laws (patent and copyright) and international treaties. You (a) acknowledge that no title to the intellectual property in the Software is transferred to you, (b) confirm that any copies of the Software you make will contain the same proprietary notices, which appear on and in the Software, and (c) agree that you will not copy the printed materials accompanying the Software.
6.4 You may install and use the Software on the number of Licensed Computers and access it only from the Devices used by the users for whom you have acquired a CAL. If you wish to have either additional users use the Software or increase the number of Licensed Computers, then you must pay additional Licence fees to cover all such requirements.
6.5 You agree to install and use the Software, including and without limitation, any Updates that we may provide to you, only on Computer and Device hardware and software configurations that are expressly specified in Software specifications provided by us.
7. License Restrictions
7.1 Other than as set forth in Section 3, you may not make or distribute copies of the Software, or electronically transfer the Software from one Device to another or over a network.
7.2 You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
7.3 Unless otherwise provided herein, you may not rent, lease, or sublicense the Software.
7.4 Other than with respect to a Trial Version or a Not For Resale Version of the Software, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software from which you are upgrading. If the copy of the Software is licensed as part of the whole suite (as defined above), the Software shall be transferred only with and as part of the sale or transfer of the whole suite, and not separately. You may retain no copies of the Software. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Trial Version or Not For Resale Version of the Software. You may not sell, distribute, loan, rent, lease, license, sublicense or otherwise assign or transfer this license or the SOFTWARE or Written Materials unless expressly authorized in writing by IKATRON.
7.5 Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software.
7.6 You may only use the Not for Resale Version of the Software/Hardware to review and evaluate the Software or installed on it Hardware.
8. Limited Warranty and Disclaimer
8.1 THE SOFTWARE/HARDWARE AND WRITTEN MATERIALS ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND AND IKATRON DOES NOT WARRANT THAT THE SOFTWARE OR WRITTEN MATERIALS WILL BE ERROR FREE. IKATRON SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF IKATRON WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF THE PERFORMANCE OF THE SOFTWARE /HARDWARE OR ITS FAILURE TO PERFORM EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE/HARDWARE AND WRITTEN MATERIALS. THIS INCLUDES BUT IS NOT LIMITED TO INJURY, DAMAGE, OR DESTRUCTION CAUSED BY THE ACTIVATION OF ANY DEVICE, SENSOR, SWITCH INCLUDING ALL POWER LINE CARRIERS OR OTHER TECHNOLOGIES CURRENTLY OR IN THE FUTURE ASSOCIATED WITH THIS SYSTEM, OR OTHERWISE CAUSED BY THIS SOFTWARE/HARDWARE.
8.2 IKATRON PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE/HARDWARE. TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED "AS IS".
8.3 EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO THE SOFTWARE/HARDWARE OTHER THAN TRIAL VERSION AND NOT FOR RESALE VERSION, IKATRON AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT.
8.4 IKATRON BEARS NO LIABILITY FOR ANY CONSEQUENCES ARISING OUT OF INSTALLATION AND OPERATION OF THE SOFTWARE/HARDWARE, INCLUDING WITHOUT LIMITATION, ANY POWER OR ELECTRICITY FAILURE OF ANY NATURE WHATSOEVER AND ANY CONSEQUENTIAL DAMAGE OR FAILURE.
8.5 THE SOFTWARE/HARDWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
8.6 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IKATRON, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
9. Exclusive Remedy
Your exclusive remedy under the preceding is to return the Software/Hardware to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to IKATRON no more than ninety (90) days following delivery to you, IKATRON will use reasonable commercial efforts to supply you with a replacement copy of the Software/Hardware that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software/Hardware, at its option. IKATRON shall have no responsibility if the Software/Hardware has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software/Hardware with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
10. Limitation of Liability
10.1 NEITHER IKATRON NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE/HARDWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
10.2 IKATRON'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $A 500 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE/HARDWARE THAT CAUSED SUCH DAMAGE.
10.3 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.