ClearSCADA EULA

END-USER LICENSE AGREEMENT FOR ClearSCADATM

IMPORTANT - READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement

between you (hereinafter called the "Licensee") and Control Microsystems Inc., a corporation existing

pursuant to the laws of Canada (herein the “Company”) for the computer software, electronic

documentation and the media upon which this EULA is delivered (the “Software”), and any associated

printed materials that are delivered with the Software (the “Documentation”).

The Licensee enters into the terms and conditions of this EULA on the first of:

(a) installing, copying, downloading, accessing, or otherwise using the Software;

(b) acknowledging acceptance of the EULA by clicking “I Agree” as You go through the

installation process for the Software;

(c) making payment for the Software.

SOFTWARE LICENSE. The Software and Documentation is protected by copyright laws and

international copyright treaties, as well as other intellectual property laws and treaties. The Software and

Documentation is licensed, not sold.

1. TERMS AND CONDITIONS. Upon entering into this EULA, the Licensee is granted a non-

exclusive, perpetual, revocable, non-transferable (except as expressly provided herein), limited

license to use the Software and Documentation solely in accordance with the terms and

conditions of this EULA.

(a) EVALUATION LICENCE. The Evaluation License applies if and only if the Software is

supplied to the Licensee for evaluation. The Licensee may install the evaluation licence

on a single computer, and use it for the pre-programmed duration of the evaluation

period, after which time the Software will cease to operate. Evaluation purposes do not

include use for commercial benefit. When the Licensee’s use for evaluation or testing

purposes ceases, or the period expires, whichever is sooner, then the Licensee must

either:

i. immediately remove the Software from the computer and comply with the

obligations set forth in Paragraph 13; or

ii. buy a Production Licence for the Software.

(b) PRODUCTION LICENCE.

i. A Production License applies when the Licensee has purchased the right to use

the Software from the Company or its authorized reseller or agents. If the

Version: June 2010 V02

Supersedes: All Prev ious

Licensee has paid the fees and charges for Production License to the Company

or its nominated agent, then:

1. The Licensee may install and use one copy of the Software (or

component thereof) for each license purchased. Software may be

transferred from one computer (CPU) to another computer (CPU) within

an organization, but only one operating version can exist at any one

time.

2. The Software may be delivered with a limitation that restricts the

Licensee’s use to the maximum number of data points purchased. Use of

the Software with an excess of such maximum number of data points is

prohibited and alteration or modification of the Software to avoid such

restriction is prohibited and will result in termination of the Licensee’s

license. Rights to use the Software for additional numbers of data points

may be purchased from the Company or its authorized reseller or

agents.

3. Software that is enabled to provide access over a network or the

Internet, is limited to one user, unless access to concurrent users (users

simultaneously connected over the network or Internet) is purchased.

Use of the Software for more than one user, or in an excess of the

maximum number of concurrent users purchased where applicable, is

prohibited and alteration or modification of the Software to avoid such

restriction is prohibited and will result in termination of the Licensee’s

license. Rights to use the Software for additional concurrent users may

be purchased from the Company or its authorized reseller or agents.

4. The Licensee may use the Software to process its data, or the data of a

third party while acting as a service bureau, provided that the License

purchased permits a number of data points that equals or exceeds that

maximum number of data points that are at any time in the environment

attached to or accessed by the Software (the “Permitted Use”). Subject

to the foregoing, Software and Documentation may not be disclosed to,

transferred or assigned nor used by, any other third party, nor be sub-

licensed, leased, or rented or for any purpose other than the Permitted

Use (other than the rights of assignment expressly provided in this

EULA, and other for use by a sub-contractor that is working for the

Licensee).



5. Licensee may make two copies of the Software for backup and archival

purposes only.

6. The Licensee is granted a non-exclusive, non-t ransferable, revocable

licence for the hard copy Documentation for use in association with the

Permitted Use of the Software.

ii. If and only if the Production License purchased by the Licensee is designated for

use with a remote access/application publishing product (an "Application Server

Product" such as Windows Terminal Server or Citrix) that allow users to connect

remotely to applications running from central servers (herein the "Application

Central Server") then, in addition to the conditions outlined in the previous section

the following shall also apply:

1. The Licensee may install and use one copy of the Software (or

component thereof) for each license purchased on the Application

Central Server. Software may be t ransferred from one Application

Central Server to another Application Central Server but only one copy

may be installed at any one time.

2. The Licensee may allow that maximum number of unique users (as

defined below) that are purchased with this license, to remotely access

the Software from an Application Server Product. If the Licensee’s

agreement with the Company provides the Licensee with the right to

purchase additional unique users, then the Licensee may allow access of

the Software through the Application Server Product with such number of

additional unique users in accordance with the terms of such agreement.

Failure to adhere to the terms of such agreement, including any

obligation to report and to make payments in accordance with the terms

of such agreement is a default under this EULA, the Company may

terminate this EULA and the license rights granted to the Licensee

herein.

3. A unique user is a device (including but not limited to a computer or

central processing unit, smart phone, personal digital assistant) that is

authorized to use the Software from Application Server Product from a

remote location over the Internet, corporate intranet or extranet, wireless

network or other telecommunications means. A unique user may be

transferred to another device provided that the access from the

transferee device is permanently disabled.



If the Licensee wishes to use the reporting functionality of the Software, the Licensee must

acquire Crystal Reports (or such other reporting tool approved by the Company from time to time)

separately and at its own cost from an authorised reseller of that reporting tool.

2. PROHIBITED USES. Licensee must not:

(a) reverse engineer, disassemble or decompile any portion of the Software;

(b) copy, alter, adapt or t ranslate the Software or Documentation, or c reate derivative works

based upon the Software;

(c) rent or lease the Software.

3. SOFTWARE UPDATES AND NEW VERSIONS. If and when a Minor Update (which is a release

of the Software which is primarily intended to correct bugs or improve performance) or a Major

Update (which is a release of the Software designated as a new version which has as its primary

purpose the provision of additional functionality) becomes available, it will be made available to

the Licensee only if the Licensee has a current support agreement with the Company or its agent.

The Licensee is responsible for installing any update or new version, at the Licensee’s own cost.

Where Minor or Major Updates are provided they are subject to the terms and conditions of this

EULA except as expressly otherwise provided.

4. SOFTWARE SUPPORT. Software support is subject to the terms and conditions of the

Company’s Software Support Terms and Conditions which are not a part of this EULA.

5. CHANGE TO ORIGINAL LICENSE AGREEMENT. If the Licensee has either lost or misplaced

the authorization code/dongle for the Software, or has changed the computer on which a

software-licensed copy of the Software operates, or requires a change or transfer of clients

and/or drivers, or has requested a change in the form of license key (USB dongle vs. software

key) and requests a replacement authorization code or dongle. The Licensee represents and

warrants to the Company that:

(a) it is the end-user of the Software pursuant to the provisions of the EULA for the Software

from the Company;

(b) it has not transferred or assigned any right or interest in or to the Software or the License

to any person, corporation, company, firm, association, authority, partnership, individual,

or entity;

(c) the authorization code/dongle that was provided to the Licensee has been lost/misplaced

and after diligent search cannot be found, or in the case of software licensing the

computer on which the software operates is being replaced and the original license has



been removed from the computer, or in the case of a requested change in license key

type, the original license key has been sent back to the Company (USB dongle instance)

or has been removed from the computer (software key instance); and

(d) it seeks a replacement authorization code/dongle for its own use of the Software in

accordance with the License.

The Licensee acknowledges and agrees that it is bound by the License and that it obtains no

additional rights to the use of the Software upon the receipt of a replacement authorization

code/dongle.

OWNERSHIP

6. RETAINED RIGHTS. The Licensee agrees that the Company and its suppliers and licensors

retain all right, title and interest in and to the Software and the Documentation and all copies at all

times, regardless of the form or media in or on which the original or other copies may

subsequently exist. The Licensee agrees that it neither owns nor hereby acquired any claim or

right of ownership to the Software or the Documentation or to any related patents, copyrights,

trademarks or other intellectual property. The Licensee agrees to use reasonable efforts to

prevent and protect the contents of the Software and the Documentation from unauthorized

disclosure or use. The Company reserves all rights not expressly granted to the Licensee under

this EULA.

7. COPYRIGHT. The Software and Documentation is copyrighted and is protected by copyright and

patent laws and international treaty provisions. The Licensee must reproduce and include all

copyright notices, trademarks or other proprietary legends of the Company and its suppliers on

any copy of the Software or Documentation made by the Licensee.

LIMITED WARRANTY

8. 90 DAY LIMITED WARRANTY. The Company warrants that the media upon which the Software

resides will be supplied free from material defects. The Company also warrants that the Software

will perform in accordance with the specifications set forth in the Documentation in all material

respects for a period of 90 calendar days from the date of purchase (the “Warranty Period”).

The Company’s sole obligation shall be to use commercially reasonable efforts to correct any

such defect in a manner chosen by the Company in its sole discretion. The foregoing warranty

does not apply to any products which have been subject to misuse, neglect, accident or

modification or which have altered such that they are not capable of being tested under normal

test conditions. The Company shall make the final determination as to whether its products are

defective. The Company’s sole obligation for products failing to comply with this warranty shall

be, at its option, to either repair, replace or issue credit for the nonconforming product where: on



or prior to the expiration of the warranty period the Company has received written notice of any

defect or nonconformity; (ii) after the Company’s written authorization, the Licensee has returned

the defective or nonconforming product to the Company; and (iii) the Company has determined

that the product is defective or nonconforming and that such defect or nonconformity is not the

result of improper installation, repair or other misuse. THE FOREGOING WARRANTY AND

REMEDIES ARE EXCLUSIVE AND MADE EXPRESSLY IN LIEU OF ALL OTHER

WARRANTIES, EXPRESSED, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF

MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSEE

ACKNOWLEDGES THAT THE COMPANY IS NOT LIABLE, AMONG OTHER THINGS, IF THE

SOFTWARE DOES NOT MEET THE REQUIREMENTS OF THE LICENSEE OR IF THE

SOFTWARE WILL NOT OPERATE FREE OF ERRORS, UNINTERRUPTED, OR IF THE

SOFTWARE WILL NOT FUNCTION IN THE LICENSEE’S HARDWARE ENVIRONMENT. THE

COMPANY DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR

IT ANY OTHER LIABILITY IN CONNECTION WITH ITS PRODUCTS. All product returned under

warranty shall be accompanied by a Returned Material Authorization (“RMA”) number which

number must be clearly visible on the outermost package of the returned product. The RMA

number is obtained by contacting the Company prior to return of such product. Returned product

without an RMA number will not be accepted by the Company.

9. INFRINGEMENT. The Company warrants that to the best of its knowledge, the Software and

Documentation does not infringe any intellectual property rights of any third party, and will

defend, indemnify and hold the Licensee harmless from and against any third party claims that

the Company Software or Documentation infringes any copyright of others. The Licensee’s sole

remedy and the Company’s sole liability in the event of an infringement of intellectual property

rights successfully claimed will be, at the Company’s absolute and unfettered discretion:

(a) replacement of the component or components of the Software that has caused the

infringement with products that are substantially equivalent in function;

(b) modification of the component or components of the Software that has caused the

infringement so that it becomes non-infringing and substantially equivalent in function; or

(c) refund of the money paid, reduced proportionately over a straight three year line

depreciation, commencing from the dispatch date of the Software.

10. EXCLUSIONS AND LIMITATIONS. The Company does not warrant that the Licensee’s use of

the Software will be error free or that the Software will not be subject to failure. The Software is

not designed for use in: mission critical applications; in applications where error or non-

performance might lead to catastrophic consequences including injury, death or property

damage; or in applications where there is no design redundancy and periodic system verification



protocols to verify system and component operation and failure. EXCEPT FOR THE

INFRINGEMENT INDEMNIFICATION IN SECTION 8 HEREIN, IN NO EVENT SHALL THE

COMPANY BE LIABLE FOR GENERAL OR SPECIFIC DAMAGES OTHER THAN THE COST

OR REPLACEMENT OF PRODUCT SUPPLIED. THE AGGREGATE LIABILITY OF THE

COMPANY IN ANY WAY RELATING TO SUPPLY OR USE OF THE SOFTWARE, IN ANY

OCCURRENCE OR SERIES OF OCCURRENCES, SHALL BE LIMITED TO THE

CONTRACTUAL VALUE OF THE SOFTWARE SUPPLIED. IN NO EVENT SHALL THE

COMPANY BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL,

EXEMPLARY, PUNITIVE OR OTHER GENERAL OR SPECIFIC DAMAGES OR ANY LOSSES

OR EXPENSES SUFFERED BY LICENSEE OR ANYONE ELSE (INCLUDING, WITHOUT

LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,

LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), WHETHER OR

NOT THE COMPANY, OR ITS EMPLOYEES, OFFICERS, AGENTS, DEALERS OR

INSTALLERS HAS BEEN INFORMED OF THE RISK OF SUCH LOSS OR EXPENSE AND

WHETHER OR NOT SUCH LOSSES OR EXPENSES WERE FORESEEABLE AND WHETHER

OR NOT SUCH DAMAGES OR LOSSES OR CLAIMED UNDER ANY THEORY OF LAW OR

UNDER CONTRACT (INCLUDING, WITHOUT LIMITATION, A CLAIM OF FUNDAMENTAL

BREACH OR A BREACH OF A FUNDAMENTAL TERM), STATUTE, TORT (INCLUDING,

WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, IMPLIED

DUTIES, INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OR OTHERWISE OR

DIRECTLY OR INDIRECTLY RELATED TO THE SUPPLY OR USE OF SOFTWARE OR THIS

EULA.

11. INDEMNITY FROM LICENSEE. The Licensee shall indemnify and hold the Company, its

directors, officers, employees and agents harmless with respect to any general, specific, indirect,

consequential, incidental, exemplary or punitive damage, liability or claim of any kind in

connection with the loss of or damage to property and personal injury, including death, resulting

from or in connection with the product supplied by the Company or any act or failure to act by the

Company. The Licensee shall defend at its own cost and expense any and all suits or

proceedings brought against the Company, its directors, officers, employees and agents or any of

them, in connection with this indemnity.

12. TERMINATION BY LICENSEE. This EULA is effective until terminated. The Licensee may

terminate this EULA at any time by providing the Company with written notice, provided that the

Licensee has complied with the return and/or destruction obligations set forth in Paragraph 13

below. If the Licensee terminates this EULA then it is not entitled to any refund of any fees or

charges, and the Company will not be liable for any loss, cost, expense or damages resulting

from or as a consequence of such termination.



13. TERMINATION BY COMPANY. This EULA may be terminated by the Company if the Licensee

fails to comply with any of the terms and conditions set forth in this EULA and does not remedy

such failure within thirty (30) days after receiving notice thereof. A breach of the license

provisions under Paragraph 1 or the prohibitions in Paragraph 2 shall terminate this EULA and

the Licensee’s rights to use the Software with or without notice from the Company. The

Company may also terminate this EULA immediately upon notice if there is any use or

dissemination of the Software or Documentation which is not expressly permitted herein. The

Company will not be liable for any loss, cost, expense or damages resulting from or as a

consequence of such termination.



14. CONSEQUENCES OF TERMINATION. Upon any termination of this EULA, the Licensee must:

(a) Immediately cease all use of the Software and Documentation;

(b) Either provide the Company with written certi fication that Licensee has destroyed all

copies of Software and Documentation, or, if requested by the Company, return all copies

of the Software and Documentation to the Company, at the Licensee’s expense; and

(c) Paragraphs 2, 9, 10 and 13 survive any termination of this EULA.

GENERAL

15. ENTIRE AGREEMENT. This EULA contains the complete agreement between the parties with

respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or

understandings, whether oral or written and there are no warranties, representations or other

agreements between the parties in connection with the subject matter hereof except as

specifically set forth herein. No supplement, modification, amendment, waiver or termination of

these Terms and Conditions shall be binding unless executed in writing by the Company and the

Licensee. In the event of a conflict between the EULA, the Software Support Terms and

Conditions, or the Purchase Order, the End User License Agreement will prevail. Any standard

conditions of purchase or provision, term, condition, right, warranty, acknowledgement, or

obligation set forth in the Licensee’s purchase order, other than the order for product of the

Company, shall be deemed excluded and of no force or effect.

16. EXPORT REGULATIONS. Licensee agrees to comply fully with all laws and regulations

concerning the purchase and sale of products. In particular, the Licensee agrees to comply with

the export laws and regulations of the United States and Canada in so far as they apply to the

supply of the Software. The export of the Software or Documentation from the country of original

purchase may be subject to control or restriction by applicable local law. The Licensee is solely

responsible for determining the existence and application of any such law to any proposed export

and for obtaining any needed authorization. The Licensee agrees not to export the Software from

any country in violation of applicable legal restrictions on such export.

17. PARTIAL INVALIDITY. If any provision of this EULA or the application thereof to any person or

circumstance shall, to any extent, be invalid or unenforceable, the remainder of this EULA, or the

application of such provision to persons or circumstances other than those as to which it is held

invalid or unenforceable, will not be affected thereby and each provision of this EULA will be valid

and enforced to the fullest extent permitted by law and be independent of every other provision of

this EULA.



18. GOVERNING LAW. This EULA shall be governed by and construed in accordance with the laws

of the Province of Ontario and the applicable laws of Canada excluding the law of conflicts and

excluding the United Nations Convention of Contracts for the Sale of Goods and shall be treated

in all respects as an Ontario contract. The Parties hereto irrevocably attorn to the exclusive

jurisdiction of the courts of the Province of Ontario, Canada with respect to any and all disputes

arising out of, pursuant to or relating to this EULA or the supply of product and waives any right

that it may have to assert the defence of forum non-conveniens in any suit, action or proceeding.

19. WAIVER. The failure or delay of to exercise any of its rights under this EULA or upon any breach

of this EULA must not be deemed a waiver of those rights or of the breach.

20. NO TRANSFER. The Licensee must not transfer or assign this EULA or any of the rights and

obligations under it to any third party except as follows:

(a) if Licensee is a reseller (such as a Systems Integrator “SI”, or an Original Equipment

Manufacturer “OEM”), the Software and the EULA may be transferred to Licensee’s

customer;

(b) the software and EULA can be transferred to a third party purchaser of all or substantially

all of the Licensee’s assets provided such purchaser agrees to be bound by the terms

and conditions of the EULA.

ClearSCADA EULA

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