Hach WIMS Direct Server-Side Interface to ClearSCADA System Q13575
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Version: June 2010 V03 Supersedes: All Previous
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 Licensees 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
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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
Licensees 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 Licensees
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 Licensees
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).
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5. Licensee may make two copies of the Software for backup and archival
purposes only.
6. The Licensee is granted a non-exclusive, non-transferable, 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 transferred 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 Licensees
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.
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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 translate the Software or Documentation, or create 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 Licensees 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
Companys 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
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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 Companys 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 Companys 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
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or prior to the expiration of the warranty period the Company has received written notice of any
defect or nonconformity; (ii) after the Companys 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 LICENSEES 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 Licensees sole
remedy and the Companys sole liability in the event of an infringement of intellectual property
rights successfully claimed will be, at the Companys 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 Licensees 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
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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. COMMITMENT BY LICENSEE. The Licensee shall notify the Company of any defect in respect
of the Software, non-conformity of the Software to written documentation and any security
vulnerability of the Software including without limitation susceptibility to error or flaw in the
Software, allowing unauthorized access to the Software, or the capability of an unauthorized
attacker to exploit the flaw to cause mischief or damage to the Software or the systems enabled
or controlled or monitored by the Software or to obtain information about the Software or the
systems enabled or controlled or monitored by the Software. The notification from the Licensee to
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the Company shall set forth the defect, non-conformity or security vulnerability in detail so as to
enable the Company to take corrective action if deemed required, but nothing herein shall
obligate the Licensee to provide information that is not in its possession. The Licensee further
acknowledges and agrees that it shall not disclose to the public by any means or media any
defect, non-conformity or security vulnerability unless the Licensee has first complied with its
obligation to inform the Company and provided the Company with sufficient time to address the
matter, unless the Licensee in good faith considers the public disclosure necessary to prevent
imminent injury or damage. The Licensee acknowledges that the obligation herein are
fundamental to this Licensee, apply to all licenses including evaluation licenses, and are meant to
promote the public good through continual quality assurance of the Software.
13. 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 14
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.
14. 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 Licensees 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.
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15. 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 certification 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 Licensees expense; and
(c) Paragraphs 2, 9, 10 and 14 survive any termination of this EULA.
GENERAL
16. 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 Licensees purchase order, other than the order for product of the
Company, shall be deemed excluded and of no force or effect.
17. 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.
18. 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
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and enforced to the fullest extent permitted by law and be independent of every other provision of
this EULA.
19. 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.
20. 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.
21. 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 Licensees
customer;
(b) the software and EULA can be transferred to a third party purchaser of all or substantially
all of the Licensees assets provided such purchaser agrees to be bound by the terms
and conditions of the EULA.