WebDemoSCP220 | Espec Web Controller

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This Software License Agreement (this Agreement) is a CONTRACT between you (either as an individual or with your organization, the Customer) and Espec North America, Inc., a Michigan corporation with a place of business at 4141 Central Parkway, Hudsonville, MI 49426 (ESPEC) which covers your use of the ESPEC Software that accompanies this Agreement and related software components, which may include associated media, printed materials, and online or electronic documentation.

A software license is issued to each user by ESPEC or its authorized agents, and is required for each user of the ESPEC Software. Each time you start the ESPEC Software and click through this Agreement you are once again agreeing to all its terms.

Please read this Agreement carefully before installing, accessing, or using the ESPEC Software. You agree to be bound by the terms of this Agreement if you use or access the ESPEC Software. If you do not agree to the terms of this Agreement, do not access or use the ESPEC Software.

By accessing or using the ESPEC Software, or by clicking through any license notice during start-up or installation, or opening a CD jewel case or envelope containing the terms printed on the outside, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND ESPEC, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

1: Definitions.
1.1: Affiliate means an entity where Customer owns or controls more than 50% of either the entitys voting rights or the entitys controlling body, but only for so long as this control continues to exist.
1.2: Commencement Date means, with respect to specific ESPEC Software, the date on which Customer receives the first copy of that ESPEC Software.
1.3: Documentation means the documentation pertaining to the use of the ESPEC Software that is made available to Customer, as it may be updated from time to time by ESPEC.
1.4: ESPEC Software means all software programs accessed pursuant to this Agreement, as well as any other item listed that is, or is substantially comprised of, computer software or computer-readable information, in object code only, and provided by ESPEC to Customer, including any Upgrades provided to Customer.
1.5: Fees means ESPEC Software license fees and all other fees or charges arising pursuant to Customers use of the ESPEC Software.
1.6: Term is defined in Section 4.1.
1.7: Upgrades means maintenance patches, new releases, or new versions for ESPEC Software provided to Customer.
2: License Grants and Limitations.
2.1: Software License. Subject to all the terms and conditions of this Agreement, ESPEC hereby grants to Customer a nonexclusive, nontransferable, nonsublicensable license during the Term under ESPECs intellectual property rights to use the ESPEC Software provided with this Agreement solely for its own internal business purposes and in accordance with the other restrictions in this Agreement.
2.2: Documentation License. Subject to all the terms and conditions of this Agreement, ESPEC hereby grants to Customer a nonexclusive, nontransferable, nonsublicensable license during the Term under ESPECs intellectual property rights to use and copy the Documentation in support of Customers licensed use of the ESPEC Software.
2.3: Use by Affiliates.
2.3.1: Addendum. The ESPEC Software and Documentation may be used by an Affiliate of Customer, provided that the Affiliate agrees to be bound by the terms of this Agreement.
2.3.2: Customer Responsibility. Any use by a Customer Affiliate will be subject to the following: (a) Customer is responsible for the acts or omissions of its Affiliate as if they were Customers acts or omissions; (b) Customer shall indemnify ESPEC against all losses and damages arising from breach of this Agreement by its Affiliate; and (c) the Affiliates use will not constitute a violation under any applicable export law or regulation.
2.4: Restrictions
2.4.1: General. Customer acknowledges that the ESPEC Software and Documentation contain valuable trade secret and confidential information of ESPEC. Customer shall take the actions necessary to fulfill its obligations under this Agreement by instruction or agreement with its employees or agents who are permitted access to the ESPEC Software or Documentation. Customer shall only give access to the ESPEC Software or Documentation on a need-to-know basis.
2.4.2: Proprietary Rights. Title to all patents, copyrights, trade secrets, and other proprietary rights in or related to the ESPEC Software and Documentation (including all of their component parts) are and will remain the exclusive property of ESPEC. Customer will not acquire any right in the ESPEC Software or Documentation except the limited rights specified in this Section 2, or take any action to challenge ESPECs proprietary rights. Unless otherwise specifically agreed in writing, ESPEC will own all rights in any copy, translation, modification, adaptation, or derivative work of the ESPEC Software, including any improvements, whether or not authorized by ESPEC, and Customer hereby assigns these rights to ESPEC. At the request of ESPEC, Customer shall execute and deliver any additional instrument that may be appropriate to assign these rights to ESPEC.
2.4.3: No Implied Licenses. Any use, modification, or distribution of the ESPEC Software or Documentation by Customer outside the scope of the express licenses granted in this Section 2 is prohibited.
2.4.4: No Reverse-Engineering. Customer shall not, and shall not knowingly permit others to: (a) modify the ESPEC Software; or (b) decompile, reverse-engineer, disassemble, or otherwise attempt, directly or indirectly, to obtain or create source code for the ESPEC Software; except that decompiling the ESPEC Software is permitted solely to the extent the laws of Customers jurisdiction give Customer the right to do so to obtain information necessary to render the ESPEC Software interoperable with other software, provided that Customer must first request this information from ESPEC and ESPEC may, in its sole discretion, either provide this information to Customer or impose reasonable conditions, including a reasonable fee, on this use of the ESPEC Software to ensure that ESPECs proprietary rights in the ESPEC Software are protected.
2.4.5: Unauthorized Distribution or Copying. Other than in accordance with this Agreement, Customer shall not, and shall not knowingly permit others to: (a) lease, license, sublicense, transfer, or assign any of its rights under this Agreement; (b) sell, rent, or distribute the ESPEC Software, including providing access to the ESPEC Software or using the ESPEC Software to operate a service bureau or on a timesharing basis; or (c) use, copy, duplicate, or otherwise reproduce any part of the ESPEC Software or Documentation. Any breach of this Section 2.4.5 is a material breach of this Agreement that is incapable of cure.
2.4.6: Required Proprietary Notices. Customer shall ensure that each permitted copy it makes of the ESPEC Software or Documentation contains the same proprietary notices as provided to Customer.
2.5: Reasonable Cooperation. Customer shall promptly provide to ESPEC all relevant facts in its possession upon becoming aware of a likelihood of infringement or other illegal use or misuse by any third party of the ESPEC Software or any related intellectual property rights. Customer shall provide reasonable cooperation in any related suits and actions, at ESPECs request and expense.
2.6: Acceptance. Without prejudice to any warranty rights, Customer will be deemed to have accepted the ESPEC Software on the Commencement Date. All subsequent copies of a particular ESPEC Software product will be deemed accepted upon acceptance of the first copy delivered to Customer.
3: Fees. Customer shall pay the Fees for the ESPEC Software in accordance with the applicable agreement governing purchase of the ESPEC Software.
4: Term and Termination
4.1: Term. This Agreement commences on the Effective Date and continues in perpetuity, unless otherwise terminated under Section 4.2 (the Term).
4.2: Termination. Either party may terminate this Agreement upon written notice if the other party is in material breach of this Agreement and fails to correct the breach within thirty (30) days after written notice.
4.3: Effect of Termination. Upon termination of this Agreement, all licenses granted to Customer will immediately terminate and Customer shall: (a) immediately cease using the ESPEC Software and Documentation; and (b) certify to ESPEC in writing within thirty (30) days after termination that Customer has destroyed or returned to ESPEC the ESPEC Software and Documentation and all copies remaining in Customers possession or control. This requirement applies to copies in all forms, partial and complete, and whether or not modified or merged into other materials. Termination of this Agreement by either party will not limit a party from pursuing any other remedies available to it, including injunctive relief, nor will termination release Customer from its obligation to pay all Fees that Customer has agreed to pay under this Agreement. The parties rights and obligations under Sections 2.3.2, 2.4, 2.5, 3, 4, 5, 6, 7, and 8 will survive termination of this Agreement.
5: Disclaimers.
5.1: THE ESPEC SOFTWARE IS PROVIDED AS IS, AND ESPEC MAKES NO WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY ESPEC SOFTWARE, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
5.2: ESPEC DOES NOT WARRANT THAT THE ESPEC SOFTWARE WILL MEET ANY CUSTOMER REQUIREMENTS, THAT THE ESPEC SOFTWARE WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE ESPEC SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
5.3: No statement by any ESPEC employee or agent, orally or in writing, will serve to create any warranty or obligation or to otherwise modify this Agreement.
6: LIMITATION OF LIABILITY
6.1: EXCEPT WITH REGARD TO CLAIMS BASED UPON CUSTOMERS BREACH OF SECTION 2.4, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, SAVINGS, REVENUE, OR USE, DAMAGED OR LOST FILES OR DATA, OR BUSINESS INTERRUPTION) IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. ESPEC WILL NOT BE LIABLE FOR ANY DAMAGES FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR AGGREGATE LIABILITY TO CUSTOMER RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EXCEEDING THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE ESPEC SOFTWARE DURING THE ONE-YEAR PERIOD PRECEDING THE FIRST ACT GIVING RISE TO LIABILITY. NEITHER PARTY WILL BE LIABLE FOR ANY DAMAGES BASED ON ACTIONS OR OCCURRENCES THAT OCCURRED MORE THAN ONE YEAR BEFORE THE OTHER PARTY PROVIDES NOTICE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES.
6.2: CUSTOMER ACKNOWLEDGES THAT THE FEES CHARGED FOR THE ESPEC SOFTWARE REFLECT THE OVERALL ALLOCATION OF RISK BETWEEN THE PARTIES, INCLUDING BY MEANS OF THE LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND A MODIFICATION OF THESE PROVISIONS WOULD AFFECT SUBSTANTIALLY THE FEES CHARGED BY ESPEC. IN CONSIDERATION OF THESE FEES, CUSTOMER AGREES TO THIS ALLOCATION OF RISK AND HEREBY WAIVES ANY RIGHT, THROUGH EQUITABLE RELIEF OR OTHERWISE, TO SUBSEQUENTLY SEEK A MODIFICATION OF THESE PROVISIONS OR ALLOCATION OF RISK.
7: Indemnity
7.1: ESPEC Intellectual Property Indemnity. ESPEC shall defend or, at its sole option, settle, at its own expense any suit, action, or proceeding brought against Customer by a third party claiming that the ESPEC Software infringes any United States patent issued or any copyright or trade secret arising under the laws of any jurisdiction (an IP Action), and ESPEC shall pay damages finally awarded against Customer in the IP Action, or those monetary damages agreed to by ESPEC and the claimant in a monetary settlement of the IP Action; provided that ESPEC will be relieved of these obligations unless Customer: (a) gives ESPEC prompt written notice of the claim; (b) tenders to ESPEC sole control of the defense or settlement of the IP Action; and (c) cooperates with ESPEC in defending or settling the IP Action. If ESPEC receives notice of an allegation that any ESPEC Software infringes a third partys intellectual property rights, or if Customers use of any ESPEC Software is enjoined as a result of infringement, ESPEC may, at its sole option and expense: (i) procure for Customer the right to continue using the ESPEC Software; (ii) modify the ESPEC Software so that it is no longer infringing; or (iii) replace the ESPEC Software with other ESPEC Software of equal or superior functional capability. If none of these actions are in ESPECs determination commercially feasible, ESPEC will have the right to terminate the license to that ESPEC Software. If ESPEC terminates an ESPEC Software license as described above: (1) ESPEC shall refund the applicable Fees paid for the license of that ESPEC Software, prorated over a straight-line five-year period; and (2) Customer shall immediately deliver to ESPEC all copies of that ESPEC Software in Customers possession or control. This requirement applies to all copies in all forms, partial and complete, and whether or not modified or merged into other materials. Notwithstanding any other provision of this Agreement, ESPEC will not accept new orders for ESPEC Software that is subject to a claim of infringement.
7.2: ESPEC IP INDEMNITY LIMITATIONS. THE RIGHTS GRANTED TO CUSTOMER UNDER SECTION 7.1 WILL BE CUSTOMERS EXCLUSIVE REMEDY AND ESPECS SOLE OBLIGATION AND LIABILITY FOR ANY ALLEGED INFRINGEMENT OF A PATENT, COPYRIGHT, TRADEMARK, OR OTHER PROPRIETARY RIGHT, INCLUDING MISAPPROPRIATION OF A TRADE SECRET. ESPEC HAS NO LIABILITY TO CUSTOMER, INCLUDING UNDER SECTION 7.1, FOR ANY CLAIM OF INFRINGEMENT CAUSED BY: (A) MODIFICATION OF THE ESPEC SOFTWARE WITHOUT THE APPROVAL OF ESPEC; (B) ANY CUSTOMER OR THIRD-PARTY APPLICATION OR OTHER TECHNOLOGY; (C) USE OF THE ESPEC SOFTWARE IN CONNECTION OR IN COMBINATION WITH EQUIPMENT, DEVICES, OR ESPEC SOFTWARE NOT PROVIDED BY ESPEC (BUT ONLY TO THE EXTENT THAT THE ESPEC SOFTWARE ALONE WOULD NOT HAVE INFRINGED); (D) COMPLIANCE WITH CUSTOMERS DESIGN REQUIREMENTS OR SPECIFICATIONS; (E) USE OF ESPEC SOFTWARE OTHER THAN AS PERMITTED UNDER THIS AGREEMENT, OR IN A MANNER FOR WHICH IT WAS NOT INTENDED; OR (F) USE OR DISTRIBUTION OF OTHER THAN THE MOST CURRENT RELEASE OR VERSION OF THE ESPEC SOFTWARE (IF THE INFRINGEMENT WOULD HAVE BEEN PREVENTED BY THE USE OF THIS RELEASE OR VERSION).
7.3: Customer Use Indemnity. Except with respect to infringement of third-party rights for which ESPEC is obligated to indemnify under Section 7.1, Customer shall defend at its own expense any suit, action or proceeding brought against ESPEC by a third party based on any claim arising in connection with Customers use of the ESPEC Software (a Use Action), and Customer shall pay the damages incurred by ESPEC in the Use Action, or those damages agreed to in a settlement of the Use Action, and all reasonable attorney fees and costs of litigation. ESPEC shall: (a) notify Customer promptly in writing of the Use Action, (b) tender to Customer sole control of the defense or settlement of the Use Action at Customers expense, provided, however, Customer may not settle a Use Action in a manner that would have an adverse impact on the business of ESPEC without receiving the prior written consent of ESPEC, and (c) cooperate and, at Customers expense, assist in the defense of the Use Action. ESPEC will have the right to participate at its own expense in any Use Action or related settlement negotiations using counsel of its own choice.
8: General.
8.1: Export. Customer shall comply with all applicable export laws and regulations of the United States of America, the European Union, and other countries (Applicable Export Laws) and assure that no ESPEC Software is: (a) exported, directly or indirectly, in violation of Applicable Export Laws; or (b) intended to be used for any purposes prohibited by the Applicable Export Laws, including nuclear, chemical, or biological weapons proliferation. The parties shall not take any actions that would cause either party to violate the U.S. Foreign Corrupt Practices Act or similar anti-corruption laws.
8.2: U.S. Government End Users. The ESPEC Software and Documentation qualify as commercial items, as that term is defined at Federal Acquisition Regulation (FAR) (48 C.F.R.) 2.101, consisting of commercial computer software and commercial computer software documentation as these terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202‑4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Customer may provide to a government end user or, if this Agreement is direct, a government end user will acquire, the ESPEC Software and Documentation with only those rights specified in this Agreement. Use of either the ESPEC Software or Documentation or both constitutes agreement by the government that the ESPEC Software and Documentation are commercial computer software and commercial computer software documentation, and constitutes acceptance of the rights and restrictions in this Agreement.
8.3: Notice. All notices under this Agreement, including notices of address change, must be in writing and will be deemed given when sent by (a) registered mail, return receipt requested, or (b) a nationally recognized overnight delivery service (such as Federal Express), to the President of the appropriate party at the relevant address first listed above, or to a partys address as changed in accord with this Section.
8.4: Legal Expenses. If legal action is taken by either party to enforce its rights under this Agreement, all costs and expenses incurred by the prevailing party, including reasonable attorney fees and costs of litigation, will be paid by the other party.
8.5: Severability. If a provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining provisions will remain in full force and effect.
8.6: Governing Law; Venue. This Agreement is governed by the laws of the State of Michigan, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All litigation related to this Agreement must be brought in a state or federal court located in Kent County, Michigan, as permitted by law, except that ESPEC may elect to seek injunctive or similar relief in any court having jurisdiction over Customer. Customer hereby consents to the personal jurisdiction of these courts.
8.7: No Waiver. No failure to exercise, and no delay in exercising, any right will operate as a waiver; nor will any single or partial exercise of a right preclude any further exercise of that right or the exercise of any other right. The waiver by a party of a breach of this Agreement will not constitute a waiver of any other breach.
8.8: Assignment. Neither party may assign or transfer, by merger, operation of law or otherwise, this Agreement or any right or duty under this Agreement to a third party without the other partys prior written consent, except that. ESPEC may transfer this Agreement, together with all of its rights and duties under this Agreement, to a successor entity if ESPEC is acquired, whether by equity or asset purchase, merger, corporate restructuring or reorganization, or the like. Any purported assignment or transfer in violation of this Section is void.
8.9: Independent Contractor; Use of Subcontractors. ESPEC is an independent contractor and nothing in this Agreement or related to ESPECs performance will be construed to create a joint venture relationship between Customer and ESPEC, or an employee relationship between Customer and any ESPEC employee or subcontractor. ESPEC may, in its discretion, utilize subcontractors to provide services under this Agreement.
8.10: No Third-Party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon any of the parties employees, agents, contractors or customers, or upon any other person or entity.
8.11: Construction of this Agreement. The word including is not intended to be exclusive and means including, but not limited to. The word or is not intended to be exclusive unless the context clearly requires otherwise. Each of the parties and their counsel have carefully reviewed this Agreement, and, accordingly, no rule of construction to the effect that any ambiguities in this Agreement are to be construed against the drafting party will apply in the interpretation of this Agreement.
8.12: Force Majeure. Except with regard to any obligation to pay money, neither party will be held responsible for any delay or failure in performance caused by fire, flood, embargo, strike, labor dispute, delay or failure of any subcontract, telecommunications failure or delay, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond that partys reasonable control. If any of these events does occur, the time to perform an affected obligation will be extended by the length of time the event continues.
8.13: Entire Agreement. This Agreement contains all the agreements, representations, and understandings of the parties and supersedes any previous understandings, commitments, representations or agreements, oral or written, with respect to the subject matter of this Agreement. If there is any inconsistency between a term of this Agreement and a term on any exhibit, the term of this Agreement will govern.
8.14: Modification. This Agreement may not be modified or amended except in a written document signed by a duly authorized representative of each party that expressly states the sections of this Agreement to be modified; no other act, usage, or custom will be deemed to amend or modify this Agreement. Each party hereby waives any right it may have to claim that this Agreement was subsequently modified other than in accordance with this Section.
8.15: Purchase Orders.Customer may, for purposes of administrative convenience, use Customers standard form of purchase order to order ESPEC Software. Any terms or conditions on a purchase order in any way different from or in addition to the terms and conditions of this Agreement will have no effect and ESPEC hereby rejects these terms and conditions.

THE ESPEC SOFTWARE INCLUDES FUNCTION CALLS TO THE FOLLOWING MODULES, WHICH ARE GOVERNED BY THE ADDITIONAL OR DIFFERENT LICENSE TERMS SET FORTH BELOW

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