Factory Control Systems

FACTORY CONTROL SYSTEMS, Licence Agreement for Database and Software Products

You may use the supplied software only in accordance with this Licence Agreement.
Factory Control Systems Licence agreement for Software Products
(This is a Licence and not a sale)

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GENERAL TERMS AND CONDITIONS

1. PROPOSAL.

All quotations/ proposals provided they are in writing are valid and capable of acceptance by customers for 30 days. They may include additional terms and conditions and details of timescales and payments not stated in these terms. Any contract between Factory control Systems and a customer shall be on these terms together with any contained in a quotation/ proposal to the exclusion of all other terms and conditions (including any purchase terms or similar of the customer).

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2. ACCEPTANCE.

Factory control Systems will undertake work based on an instruction in written, verbal or electronic format, at our discretion. Once work has begun the customer will be bound by these terms and conditions and will be charged at Factory control Systems' current rate for the given work or as otherwise stated in a quotation/ proposal.

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3. DEFINITIONS.

3.1 A "User" is specific identifiable unique accessor of information such as a terminal, PC, Single user workstation or real time device. Use of software or hardware which reduces the number of Users directly accessing the programs (sometimes called "multiplexing" or "pooling") does not reduce the number of Users required to be licensed, but rather the number of licensed Users must include the number of distinct inputs to the multiplexing software or hardware.

3.2 The "Programs" means the Factory Control Systems software programs designated in the accompanying package or your accepted order(s) and supplied together with this licence agreement. Although the program media may contain other software products, you are hereby licensed to install and use only such designated Programs.

3.3 A "Machine" is a hardware system with any number of processors running a single copy of the operating system on which the Programs are running. 3.4 A "Secondary Copy" is a licensed copy of the Programs reproduced by you from the enclosed software Programs.

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4. LICENCE.

You may use solely for your internal business purposes the enclosed copies of the Programs (and accompanying documentation) and any Secondary Copies of such Programs designated in the accompanying documentation or Program package or in your accepted order(s) for the Programs. Each copy of the Programs may be used on one Machine running the operating system for which the Program was licensed. The Programs may not be transferred, sold, assigned or otherwise conveyed (whether by operation of law or otherwise) to another party without Factory Control Systems' prior written consent. The Programs shall be subject to the applicable usage limitations described below in this Section 2 based on the type of license purchased as indicated in the accompanying documentation or Program package or in your accepted order(s) for this Program:

4.1 Networked License. If the license is designated as a Networked Licence, each copy of the program may be accessed by any and all Users that you have licensed to access such program. Accordingly, Users in a Networked License are not tied to a particular copy of the program.

4.2 Additional License. If the license is designated as an Additional User License then in addition to the Users you previously licensed, you may also use the incremental number of additional Users designated in your accepted order(s).

4.3 Standalone License. If the license is designated as a Standalone User License, the copy of the program may only be accessed directly or indirectly by the Machine on which it resides. If the license is designated a Standalone Named User Licence, the Program may be accessed only by one Named User, but such Named User may copy and use such Program on more than one Machine.

4.4 Updates. When you have purchased Updates or you are entitled to receive free of charge Updates for the Software as and when made available by FCS for you. Where you have received an update you must install it within 30 days of receipt. Please note that installation of the Update shall terminate your right to Use the prior version.

4.5 Third Party Products. Third party products that are supplied with the programs and are accompanied by a license agreement from the supplier are provided subject to such supplier license agreement and the terms of this Factory Control Systems license agreement shall not apply to such third party products. Factory Control Systems provides such third party products "AS IS" without any warranties of any kind. The third party supplier provides any support or warranty service for such third party products.

4.6 Documentation. You may copy Manuals and the help files subject to the use limitations described below, and you make copies of printed documentation accompanying the Program for your own use. There is no restriction on the number of Users accessing documentation.

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5. LIMITED WARRANTY TERM.

The term of the Limited Warranty is One year from the date of Shipment of the Programs to you.

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6. COPY AND OTHER RESTICTIONS.

You may not copy the Programs except (a) to make a reasonable number of copies of each Program for inactive backup or archival purposes, and (b) to make the number of Secondary Copies indicated in your accepted order(s) for the programs. You may not modify, reverse engineer, decompile or disassemble the Programs (except to the extent applicable laws specifically prohibit such restriction and except as specifically permitted in the documentation). Transfer of a Program outside the country in which it was originally delivered to you is not permitted without Factory Control Systems' prior written consent and is subject to compliance with all applicable export restrictions. You may not use the Programs for timesharing, rental or service bureau purposes. You shall not remove any copyright notices or other proprietary notices from the Programs, and you must reproduce such notices on all copies or extracts of the Programs. Results of benchmark or other performance tests run on the Programs may not be disclosed to any third party without Factory Control Systems' prior written consent. Upon reasonable notice to you, Factory Control Systems may audit the number of copies of the Programs licensed by you and your use of those Programs.

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7. COPYRIGHT AND OWNERSHIP.

The programs are the intellectual property of Factory Control Systems and are protected by local copyright laws and international treaty provisions. Nothing in this agreement shall be deemed to be a transfer of intellectual property rights. You acquire only the right to use the programs. The title to or ownership of the physical carrier of the software as provided by Factory Control Systems hereunder is retained by Factory Control Systems. Any reference to "sale" or "purchase" shall be deemed to mean license in the terms contained in this agreement.

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8. SUPPORT.

This agreement does not entitle you to any maintenance or new versions of the Programs, which new versions must be separately licenced. Any such new versions licenced shall upon use replace any earlier versions and shall be governed by this agreement. You may purchase support at the rates described in Factory Control Systems' then current price list.

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9. PAYMENT TERMS.

Payments are strictly in advance or within 30 days of invoice for credit account customers. Factory Control Systems reserve the right to de-activate customers' accounts if payment is not received by the renewal or due date.

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10. FEES and TAXES.

You shall pay all applicable shipping charges, and sales, use, value added, personal property, or similar taxes, tariffs or government charges.

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11. OVERDUE ACCOUNTS.

In the unlikely event that a customer's account is overdue Factory Control Systems reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998, after as well as before judgment, on all outstanding amounts that are 30 days or more overdue. Without prejudice to Factory Control Systems' other rights and remedies at law, the customer shall keep Factory Control Systems fully indemnified against any costs and expenses (including legal and other professional fees and expenses) Factory Control Systems incurs or pays in connection with the customer's failure to pay invoices when they are due including in connection with the issue of legal proceedings for recovery of debts and interest shall accrue on such amounts on a daily basis at the same rate as is payable under this clause on all outstanding amounts that are 30 days or more overdue.

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12. RIGHT TO TERMINATE.

Factory Control Systems reserves the right to terminate or suspend any account, at any time, as deemed appropriate by Factory Control Systems staff, where the user has made inappropriate or unreasonable use of Factory Control Systems' services or where the customers account is 30 days or more overdue. We take no responsibility for loss of business or costs incurred by the customer due to the suspension or removal of services in the event of customer's non-payment of account or failure to adhere to any of our terms and conditions. If a customers account is suspended or de-activated due to late or non-payment, a re-activation charge of £50.00 plus VAT will be applied.

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13. TERMINATION.

Either party may terminate this agreement if the other party breaches any of its obligations hereunder and fails to cure such breach after written notice. Please note that following termination of this Agreement,you will not have access to any areas of the Software and if requested by us, you shall within ten working days of the termination of this Agreement, uninstall any Software and provide a certificate signed by your duly authorised representative to confirm your compliance with this paragraph. Upon termination you shall return to Factory Control Systems all copies of the Programs, software security dongles, and documentation in any form. Termination shall be without prejudice to any rights or claims we may have against you at the time of termination.

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14. LIMITED WARRANTY.

For the period set forth in Section 3 above, Factory Control Systems that the Programs, when properly used, will operate in all material respects in conformity with Factory Control Systems' published specifications for such version, and the Program media shall be free of defects. In the event of non-conforming Program or defective media, your sole remedy, at Factory Control Systems' option, shall be the replacement of the defective Program or a refund of the license fees paid for the affected Program. The Documentation Software is provided to you AS IS, without any warranty whatsoever.

No other representation, warranty, condition or term, expressed or implied, is made regarding the Program, goods or services to be supplied hereunder, including without limitation any implied warranty, condition or fitness for a particular purpose or satisfactory quality. No warranty or condition is made regarding the results of any Program or services or that all errors in the program will be corrected, or that the Program's functionality will meet your requirements. You acknowledge your responsibility to (a) regularly back up data maintained on any computer system using the Program, and (b) adequately test prior to deployment each production version of the Program in a configuration which reasonably simulates your planned production environment.

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15. The total liability

If any, of Factory Control Systems including but not limited to liability arising out of contract, tort, breach of warranty, claims by third parties or otherwise, shall not in any event exceed the license fees paid by you for the Program(s) which give rise to the claim. Factory Control Systems shall not be liable for direct damages hereunder, and Factory Control Systems shall not be liable for loss of profits, loss or inaccuracy of data or loss resulting from business reduction, or indirect, special, exemplary, incidental or consequential damages, even if such party has been advised of the possibility of such damages. This disclaimer shall not apply to damages caused by malice, gross negligence or product liability, insofar as law precludes their exclusion. Factory Control Systems means Factory Control Systems, its parent company or any company under common control with Factory Control Systems or its parent company.

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16. HIGH RISK ACTIVITIES.

The Programs are not fault-tolerant and are not designed, manufactured or intended for use in the on-line control of nuclear facilities, direct life support systems or weapons systems, or situations in which the failure of the Programs could lead directly to death, personal injury, or severe physical or environmental damage. Factory Control Systems specifically disclaim any express or implied warranty for fitness for High Risk Activities.

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17. GOVERNING LAW; COMPLETE AGREEMENT.

This agreement constitutes the complete agreement between the parties with respect to the subject matter of this agreement and is governed by English Law. General conditions of customer shall not apply to this agreement. The terms of this agreement supersedes the terms of any purchase order, order letter or other document issued or signed by you to authorise your license of the Programs. If any provision of this agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. The failure or delay of either party to exercise any rights shall not be deemed a waiver thereof and no waiver by either party of any breach of this Agreement shall constitute a waiver of any other or subsequent breach.

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