This License Agreement (“Agreement”) is for Hubbell Power Systems, Inc.’s (“HPS”) HeliCAP® Helical Capacity Design Software being installed (“Software”) and is entered into by and between HPS and each company and/or user installing and/or using the Software (“User”).
BY INSTALLING OR USING THE SOFTWARE, USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO THESE TERMS, USER MUST DISCONTINUE USE, AND UNINSTALL ALL COPIES IMMEDIATELY.
HPS grants a revocable, nontransferable and nonexclusive license to User to use the Software in the United States of America in machine readable form on User owned and controlled computer hardware. All other rights are reserved by HPS and its licensors and no other right or license is granted, express or implied.
User acknowledges that certain components of the Software may be governed by third-party licenses that may also include one or more so-called “open source” software licenses. User hereby agrees to comply with any more restrictive terms herein and any additional terms of all such third-party licenses and all updates thereto. Solely to the extent the terms of the third-party licenses strictly prohibit any more restrictive terms in this Agreement than in those licenses, such more restrictive term provisions will not apply.
User shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software. User also agrees not to remove, obscure, or alter HPS’s or any third-party’s copyright, trademarks, or other notice(s). User shall not provide the Software to any third-party.
User shall be exclusively responsible for the supervision, management, and control of its use of the Software, including but not limited to assuring use of the latest version of the Software, proper compatible computer hardware configuration, program installation, and operating methods.
User shall comply with all applicable foreign and U.S. federal, state and local laws including any applicable import, export and re-export control laws and regulations.
User agrees to indemnify, defend and hold harmless HPS and its affiliates to the fullest extent permitted by applicable law from and against any and all losses, claims, damages, liabilities, settlement costs and expenses, due to failure to meet any of User’s obligations hereunder. Any breach or anticipatory breach by User shall be deemed to cause irreparable harm to HPS.
The term of this Agreement shall commence upon User’s installation of, access to or use of the Software and terminates upon the date HPS determines end of life support. The Agreement may be terminated by either party if: (i) the other party is in material breach of the Agreement; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days, or (iii) the User is in material breach of this Agreement more than two (2) times notwithstanding any cure of any such breaches. Upon termination of the Agreement, the rights and licenses granted hereunder shall cease immediately and User shall promptly remove the Software from its systems, or if the parties agree, to certify destruction or removal of such copies.
USER UNDERSTANDS AND AGREES THAT ITS USE OF THE SOFTWARE IS AT USER'S SOLE RISK AND THAT THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HPS, ITS AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO USER THAT: (A) USER'S USE OF THE SOFTWARE WILL MEET USER’S REQUIREMENTS, (B) USER'S USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR OR MALICIOUS CODE, AND/OR (C) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SOFTWARE WILL BE CORRECTED. USER AGREES THAT ANY ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM HPS OR ITS AFFILIATES OR LICENSORS DOES NOT CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. HPS FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL HPS OR ANY OF ITS AFFILIATES BE LIABLE TO USER ON ACCOUNT OF USER'S USE OR MISUSE OF THE SOFTWARE. HPS SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE AND WRONGFUL DEATH), OR OTHERWISE (EVEN IF HPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. IF A REMEDY MUST BE PROVIDED TO USER, SUCH EXCLUSIVE REMEDY SHALL BE, AT HPS’S OPTION TO REPAIR OR REPLACE THE SOFTWARE OR REFUND OF THE LICENSE FEE, IF ANY, PAID BY USER FOR THE SOFTWARE.
User acknowledges that HPS and/or third parties own all rights, title and interest in and to the Software, including without limitation, all Intellectual Property Rights. “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any other proprietary rights, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
The parties to this Agreement are independent contractors. This Agreement shall be governed by and construed in accordance with the laws of the United States of America and New York State, without giving effect to the conflict of laws provisions of New York State or any other jurisdiction. For any dispute relating to this agreement, the parties consent to personal jurisdiction in, and the exclusive venue of, the courts in New York County, New York. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect. Failure to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision. User may not assign this Agreement by operation of law or otherwise without the prior written consent of HPS. The terms and conditions set forth in this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. The Software and any accompanying documentation have been developed entirely at private expense. They are delivered and licensed as “commercial computer software.” If this Software is acquired under the terms of a U.S. Department of Defense or civilian agency contract, use, reproduction or disclosure of the Software by the Government is subject to the restrictions set forth in this License Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.