End User License Agreement (hereinafter called EULA)
THIS ETM EULA IS A LEGAL CONTRACT BETWEEN ETM PROFESSIONAL CONTROL GMBH, MARKTSTRASSE 3, A 7000 EISENSTADT, AUSTRIA (“ETM”) AND YOU, THE END USER, (HEREINAFTER CALLED “LICENSEE”). ETM HEREBY DECLARES AS A COMMITMENT THAT YOU ARE ENTITLED TO THE RIGHTS TRANSFERRED UNDER THIS AGREEMENT. BY OPENING THE SOFTWARE PRODUCT, COMPLETING THE LICENSING PROCESS OR DOWNLOADING, INSTALLING, ACCESSING OR UTILIZING THE SOFTWARE PRODUCT, YOU AGREE TO BE FULLY BOUND TO THE TERMS AND CONDITIONS STATED UNDER THIS EULA OR ANY SEPARATE WRITTEN AGREEMENT APPROVED BY ETM.
PreambleETM develops process visualization and control systems (“SOFTWARE PRODUCT”), which are used primarily in large, complex automation projects worldwide. This EULA regulates the license for the Software Product, regardless of the media on which it is distributed.
Subject to payment of applicable License fees, ETM grants Licensee, and Licensee accepts, subject to the terms and conditions of this EULA, a nonexclusive and non-transferable License for an unlimited period of time, subject to Section 5 below (Termination) to use the Software Product and accompanying documentation according the Authorisation Code provided by ETM. The Licensee agrees that the Software Product is not sold but only licensed to the Licensee according the Authorisation Code meaning that the Licensee does not own the Software Product or a part of the Software Product or any third party software incorporated in the Software Product. The Licensee is only allowed to use the Software Product under the terms and conditions of this EULA. The licensee is only allowed to run one WinCC OA project per (virtual) machine.
2. Limited Warranty
The expressed warranty set forth herein is the only warranty with respect to the Software Product. The extend of ETM`s duties under this limited warranty shall be the correction and the replacement of the Software Product which fails to meet this warranty. In that event and if Licensee provides ETM with a written report during the warranty period of one year, ETM will use reasonable efforts to correct or replace the Software Product promptly at no charges to Licensee. This is Licensee’s sole and exclusive remedy for breach of any expressed or implied warranties hereunder. ETM warrants to Licensee that the Software Product (excluding third party software) will operate according to its documentation. ETM makes no warranties, either expressed or implied, of any kind (merchantability, fitness for a particular purpose, or non-infringement). ETM does not warrant that the Software Product will meet Licensee’s requirements or will operate in combination with hard or software which may be selected by the Licensee or that the operation will be secure, error-free or uninterrupted and ETM disclaims any and all liability in accordance with section 3 of this EULA on account thereof. Licensee must determine that the Software Product sufficiently meets Licensee’s requirements. Specific components of the Software Product may require a separate License to be accessed or otherwise utilized.
ETM warrants to the Licensee that the Software Product, when delivered, does not infringe any copyright, patent or any other intellectual property right of a third party as governed by the laws of Austria. ETM agrees to indemnify and to hold the Licensee harmless from all cost and damages incurred in connection with any such claim if the Licensee gives ETM written notice of any such claim within 30 days after Licensee becomes aware of such claim, if ETM has sole control of the defence of such claim, and Licensee provides ETM information, authority and assistance to defend against or settle such claim. Upon receipt of notice of alleged infringement ETM shall have the right to terminate the EULA and retract the Software Product at the license-fee paid by the Licensee or replace or modify the infringing Software Product to be non-infringing or obtain the right for Licensee to continue using the Software Product. This section does not apply in the event that any breach, failure, infringement or non-compliance would have been avoided by the use of a current, unaltered release of the Software Product or the breach, failure, infringement or non-compliance results from the use or combination of the Software Product with other software, hardware or materials, or results from the negligence of Licensee or any party other than ETM. ETM warrants that the Software Product will be delivered on a defect free media and, when properly installed and used, will substantially achieve the functionality described in the applicable documentation. ETM will not be liable for any loss of profit or damage caused by the delay in delivering the Software Product or any other performance under this EULA.
3. Limit of Liabilities
In no event shall ETM be liable for any damages whatsoever, including damages for losses of business profits, business interruption, loss of business information, loss of production, consequential loss, or any other loss arising out of the use or the inability to use the Software Product even if ETM has been advised of the possibility of such damages, regardless of legal grounds (contract, tort or otherwise) upon which the claim is based. In case licensee claims that the Software Product has caused damage by gross negligence of ETM, the burden of proof for such gross negligence shall rest with the licensee.
4.High Risk Activities
The Software Product is not designed, manufactured or to be used or sold as a real-time control system requiring fail-safe performance in which the failure of the Software Product could lead directly to harm including environmental damage, personal injury or death. ETM specifically disclaims any express or implied warranty of fitness of the Software Product for such High Risk Activity. Licensee agrees that ETM will not be liable for any claims or damages arising from the use of the Software Product in such applications. SIMATIC WinCC OA Open Architecture is certified by TÜV Süd according to the EN 61508-3 standard as SIL-3 components and can be used in safety critical areas as SCADA system. The basic requirements (refer to SIMATIC WinCC Open Architecture Safety Manual in the SIMATIC WinCC Open Architecture product documentation) and operating conditions must be met.
This EULA shall remain effective until termination in accordance with this section. This EULA will terminate if Licensee does not comply with any terms and conditions of this EULA. Upon such termination Licensee agrees to remove the Software Product and all copies of the Software Product from Licensee’s systems, discontinue using the Software Product and destroys the Software Product including all documentation. Licensee shall give written notice to ETM about such removal and destruction within 30 days after the removal and destruction. The termination of the EULA will not release the Licensee from any liability or obligation (such as accrued charges) which remain to be performed.
6. Proprietary Rights and Restrictions
Title, ownership rights, and intellectual property rights of the Software Product shall remain with ETM. Licensee acknowledges such rights and will not jeopardize, limit or interfere in any manner with ETM’s ownership of or rights with respect to the Software Product. Licensee may neither distribute or disclose the software product in whole or part to third parties nor copy, translate, reverse engineer, de-compile, disassemble or modify the Software Product without prior written permission of ETM. The Licensee shall not lease or rent the Software Product or a part or portion of the Software Product to a third party unless ETM grants this right to the Licensee in written consent. For branding the SIMATIC WinCC Open Architecture MSI installation a separately OEM license agreement with ETM is required. ETM has the right to trace serial numbers of the License Keys at any time and in any reasonable manner without prior notice. The Software Product is protected by a license protection mechanism and may only be used in conjunction with a valid License Key (which may be either a hardware or software device or both) issued by or on behalf of ETM. ETM retains ownership of the License Key. The Licensee may use the License Key to operate the Software Product for the term of this agreement.
7. Third Party Software
Any third party software may be provided as a part of the Software Product and is licensed to the Licensee only for use as a part of the Software Product.Third party Software is provided as is. ETM makes no warranties, neither expressed nor implied, of any kind (merchantability, fitness for a particular purpose or non-infringement) with respect to any third party software. In case Third Party software is licensed for ETM by its licensor, such warranty is assignable to Licensee without the payment of any additional fee.
8. Update Policy
ETM may create, from time to time, updated versions of the Software Product. The Licensee is entitled to update the Software Product only in case of a valid support contract for each license he holds.
ETM will deliver the Software Product without any additional documentation other than the Online Manual incorporated into the Software Product. Any reference to documentation within this EULA refers to the Online Manual which is available prior and after installation of the Software Product.
Licensee shall maintain accurate records as necessary to verify compliance with this EULA. ETM is entitled to audit the Licensee to verify such compliance. All audits shall be conducted at ETM`s expenses unless the result proofs that the Licensee did not comply with the EULA.
11. Export Control
The Licensee is not permitted to export or re-export the Software Product or any software package or any application developed by using the Software Product, to a country restricted under export laws, regulations or ordinances of whatever kind. If applicable, each party shall obtain and bear all expenses related to any necessary license, exemption or approval with respect to its own export of the product.
12. Demo / Evaluation Purposes
If the Licensee intends to use the Software Product without a valid license only for demo and/or evaluation purposes the Licensee is fully bound to the terms and conditions of this EULA. Furthermore the Licensee agrees to the following points: The Software Product shall only be used for demo and/or evaluation purposes for a period not exceeding 90 days. The Licensee must not use the Software Product without a valid license key in real applications or in any other environment other than the demo and/or evaluation environment.
13. General Provisions
This EULA is governed by and enforceable under the law of the Republic of Austria to the exclusion of any conflict of law rules and the CISG. The place of jurisdiction is the Commercial Court of Vienna. Should any part of this EULA be legally ineffective or unworkable, the legal effectiveness of the remaining provisions of this EULA shall not be affected thereby and they shall continue to retain their validity and workability. Any arrangement, change or addition (in particular any promises regarding properties, features or quality of the Software Product) to this EULA is considered invalid unless made in writing and approved by ETM.
14. Security Information
Siemens provides automation and drive products with industrial security functions that support the secure operation of plants or machines. They are an important component in a holistic industrial security concept. With this in mind, our products undergo continuous development. We therefore recommend that you keep yourself informed with respect to our product updates. Please find further information and newsletters on this subject at: http://support.automation.siemens.com and https://portal.etm.at.
To ensure the secure operation of a plant or machine it is also necessary to take suitable preventive action (e.g. cell protection concept) and tointegrate the automation and drive components
into a state-of-the-art holistic industrial security concept for the entire plant or machine. Any third-party products that may be in use must also be taken into account. Please find further information at: http://www.siemens.com/industrialsecurity and https://portal.etm.at/index.php?option=com_phocadownload&view=sections&Itemid=81