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End User License Agreement (EULA)

IMPORTANT - READ CAREFULLY BEFORE USING THIS SOFTWARE

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS END USER LICENCE AGREEMENT, PLEASE REFRAIN  FROM DOWNLOADING AND USING THE SOFTWARE.

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This End User License Agreement is a legal agreement between Invensys Controls  Limited (The Vendor) and You (either as an individual, an entity, or a representative of an entity).

1. Definitions

1.1 For the purposes of this End User License Agreement, the below terms shall have the following meanings unless otherwise stated or clear from the context:

"Components"Shall mean various components to the Software (as defined below) to

which a license can be acquired under the terms of this End User

License  Agreement  as  well  as  any  instructions  or  other  material

relating to the Software.

“Data”Shall mean all information exchanged and stored across the Wiser

solution.

“Hardware”Shall mean any Wiser product that the Software is installed on.

“The Vendor”Shall mean that company of Invensys Controls Ltd which is

Registered in the country where you have purchased the miGenie  product.


"Software"Shall mean the software subject to this End User License Agreement.

“Update”Shall mean any and all updates to the Software, including but not

limited to bug fixes, patches, updates, upgrades, enhancements, new

versions, and successors to the Software.

"Warranty Period"Shall  mean  A  ninety  (90) day  period  from  the  date  of  download/

installing of the Software.

“You”Shall mean you either as an individual, an entity, or a representative

of an entity


2. License Grant

2.1 Rights Reserved: All title and intellectual property rights, including but not limited to copyrights, patents and trademarks in and to the Software, as well as all information, data, drawings, specifications, software listings, source or object codes or other documentary information provided to You in respect of the Software remains the sole property of The Vendor. The Software is licensed, not sold. All rights not expressly granted are reserved by Invensys Controls.

2.2 New rights: You acknowledge that any new inventions, designs or processes which may arise or evolve as a result of the Customer's use of the Software will be the sole property of The Vendor unless The Vendor expressly agrees otherwise in writing.

2.3 License Acquired: Subject to your fulfilment of your obligations under this End User License Agreement, including, without limitation, payment of any and all applicable license fees, The Vendor hereby grants you, subject to the restrictions in section  3 below, a non-exclusive, non-transferable, limited license to use the Software for the purpose of using the accompanying The Vendors products connected hereto.

2.4 Exemption to license grant: The license grant under this EULA does not cover part of the Software that is subject to alternative licenses, c.f. section  7 below.



3. License Restrictions

3.1 No transfer: You may not assign, sell, sublicense, rent, lease, lend or in other ways transfer the Software or your license to the Software to any third party.


3.2 Limitations on Reverse Engineering, De-compilation, and Disassembly: You are not entitled to reverse engineer, decompile, disassemble or create derivatives of the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

3.3 Support, Upgrade, Maintenance, etc.: The Vendor  is only obliged to deliver support, upgrade, maintenance or other services in connection with the Software to the extent such an obligation to deliver such services is specifically undertaken by The Vendor  in a separate agreement between The Vendor and You.

4. Expiry and Termination

4.1 Termination: The Vendor may, by notice in writing to you, terminate the license(s) granted to you under the End User License Agreement if you are in breach of any term, condition or provision of the End User License Agreement within 14 days of having received written notice of such breach from The Vendor.

4.2 Cease of Use Upon Termination: At the termination, for whatever reason, of the license granted to You, You shall discontinue any and all use of the Software and shall immediately delete or return to The Vendor any and all copies of the Software and Accessories or any copies thereof, including partial or modified copies, and shall certify to the Company in writing that it has complied with this obligation.

5. Warranty

5.1 Software Not Error-Free: For the avoidance of doubt, The Vendor does not warrant that the Software will be error-free and will not be obliged to replace the Software where the defect or defects arise from a failure by You to install the Software in accordance with any directions provided by The Vendor or from any misuse or negligence by You.

5.2 Warranty: The following terms of warranty apply:

5.2.1 Limited Warranty: The Vendor warrants that for a period of ninety (90) days from the date of installation the Software will, if used in accordance with the instructions, perform substantially in accordance with the accompanying technical description. The said limited warranty covers the Software for the Warranty Period. If You discover a breach of this limited warranty and You notify The Vendor thereof immediately after discovering the breach, and in any event before expiry of the Warranty Period,
5.2.2 The Vendor shall, to the exclusion of any and all other remedies of breach, use reasonable endeavours to correct, by patch or new release (at The Vendor's option), that part of the Software which has caused the non-compliance with the warranty, provided that such non-compliance has not been caused by any modification, variation or addition to the Software not performed by The Vendor or caused by Your incorrect use, abuse or corruption of the Software or by use of the Software with other software or on equipment with which it is incompatible.

5.2.2 No other warranties: to the extent permitted by applicable law, the vendor disclaims all other warranties with respect to the software, either express or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose. accordingly, after the expiration of the warranty period you will no longer be entitled to submit any claims in relation to defects in the software.



6. Exclusions and limitations of liability

6.1 Exclusion of liability for indirect damages, etc.: in no event will the vendor  be liable to you or any other person or entity for any indirect damages of any kind, including, without limitation, for lost profits, lost savings, lost data or other special, indirect, punitive, consequential, or incidental damages arising out of or relating to the software (or to any service furnished to you), or undertaken by the vendor  to be furnished to you, or to the use thereof or otherwise arising out of or relating to any obligations that the vendor  may have under the end user license agreement, even if the vendor  has been advised of the possibility of such loss or damage. the foregoing exclusion of liability applies to all causes of action, including breach of contract, breach of warranty, strict liability, negligence and other torts..

6.2 Cap on liability: the maximum aggregate liability of the vendor  upon any claims howsoever arising out of or relating to the software or to any service furnished to you, or undertaken by the vendor  to be furnished to you, or to the use thereof or otherwise arising out of or relating to any obligations that the vendor  may have under the end user license agreement will in any event be absolutely limited to the direct damages actually incurred by you and furthermore be limited to your total payment for the wiser solution in question. the foregoing limitation applies to all causes of action in the aggregate, including breach of contract, breach of warranty, strict liability, negligence and other torts.

6.3 Third party licenses: further to the above, in relation to parts of the software subject to section  7 of this eula the vendor' liability shall be further limited in accordance with the terms and conditions of the alternative license and the vendor will in no event be subject to a wider or more substantial liability that what is evident from the relevant alternative license in question.



7. Third Party Rights

7.1 Code subject to other licenses: The Software may contain code, including third party code, for which The Vendor is required to provide attribution. Some of this code may be released under alternative license terms, e.g. open source licenses. Such code is not licensed under this EULA and shall be subject only to the alternative license which shall constitute the sole license for such code and shall govern the relation between you and the alternative licensor. This EULA does not alter any rights or obligations you may have under these alternative licenses. The Vendor provides no warranty whatsoever in relation to code subject to such alternative licenses. Further information and relevant licenses can be found at the Wiser web site

7.2 No Licence to Third Party Rights Granted: The Vendor  cannot and does not grant to You any license to any third party any intellectual property rights held by a third party in respect of which You may need to hold a license in order to be able lawfully to use the Software for the purposes contemplated by You, including so as to be able lawfully to use the Software in such specific process, set-up or other context and in such specific combination with other software or devices as may be intended by You. You must at Your own expense acquire and maintain any such licenses from third parties, and The Vendor  cannot be held liable if a third party raises a claim for infringement of such third party's patent rights or other intellectual property rights. If you do not acquire and maintain such third party licenses as mentioned and if this somehow results in a third party raising a claim against The Vendor, You shall indemnify The Vendor against any such third party claim.

8. Force Majeure

8.1 No Liability in Case of Force Majeure: The Vendor  shall be under no liability for anything whatsoever that may constitute breach by The Vendor  of the End User License Agreement arising by reason of force majeure, namely, circumstances beyond the control of The Vendor , including but not limited to acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts.

9. Miscellaneous

9.1 No Waiver: Failure or neglect by The Vendor to enforce at any time any of the provisions of the End User License Agreement shall not be construed nor shall be deemed to be a waiver of The Vendor 's rights under the End User License Agreement nor in any way affect the validity of the whole or any part of the End User License Agreement nor prejudice The Vendor 's rights to take subsequent action.

9.2 Use of Data: The Vendor collects Data in order to deliver the best products and services to its customers. You understand and accept that The Vendor  can collect, hold and process your Data (whether obtained or held in writing, electronically or otherwise) in order to deliver the best products and services, you hereby expressly authorise The Vendor  to the following (provided that The Vendor  complies at all times with local data protection law):

9.2.1 store and process copies of the Data, and

9.2.2 transfer the Data to a destination inside or outside the European Economic Area (EEA) or to store them at a destination inside or outside the EEA for the above purpose.

9.3 Headings: The headings of the provisions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the provisions of this End User License Agreement.

9.4 Severability: In the event that any of the provisions of this End User License Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such provision shall to that extent be severed from the remaining provisions which shall continue to be valid between the Parties to the fullest extent permitted by law.

9.5 Inconsistencies: The terms of this Licence prevail over all inconsistent promises, representations or undertakings which may be made in respect of the Software unless The Vendor expressly agrees otherwise in writing.

9.6 Change of terms: The Vendor may modify the terms and conditions pursuant to the End User License Agreements from time to time with 14 days' notice after such changes have been posted on The Vendor's website.

9.7 Software Updates: The Vendor will from time to time provide updates to the Software. You understand and accept that said updates are Internet-based and that The Vendor will provide this automatically and without prior notice to you. You also understand and accept that failure to do so will exempt The Vendor  from any liability arising out of the Software and the use hereof when the loss in question result from a version of the Software which has later been Updated.

10. Applicable law and venue

10.1 Applicable Law: This End User License Agreement shall be governed, construed and enforced in accordance with the laws of England & Wales.

10.2 Venue: The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this End User License Agreement.

10.3 Right to injunctive relief: Notwithstanding section  10.2 above, The Vendor may seek injunctive or equitable relief in any jurisdiction in order to enforce its intellectual property rights.

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