Inductive Automation Master Software License Agreement

DEFINITIONS.

“Activation Key” means an alphanumeric code required to use the Software for more than the limited (currently, two-hour) runtime of the free version of the Software available for download from Inductive Automation’s website.
“Additional Support Services” is defined in the Support Terms.
“Affiliate” means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means the power to directly or indirectly control the subject entity, whether through ownership of voting securities, by contract interest, or otherwise.
“After-Hours Support Services” is defined in the Support Terms.
“Bug” means the failure of the Software to conform substantially to the Documentation.
“Community Impact Use Software” means an Instance of the Software (including the related Activation Key) provided by Inductive Automation to a non-profit organization free of charge only for philanthropic use by personnel at the non-profit organization.
“Documentation” means end user documentation and materials provided by Inductive Automation for the Software, in print, online, embedded as part of a help function, or in license, “read me”, or similar files. The Documentation includes end user manuals, operation instructions, installation guides, release notes and online help files.
“Educational Use Software” means an Instance of the Software (including the related Activation Key) provided by Inductive Automation to an educational institution free of charge only for teaching and training use by faculty, staff, or students at the educational institution.
“Evaluation Software” means an Instance of the Software (including the related Activation Key) provided to You by Inductive Automation on a limited trial basis free of charge solely to test and evaluate the Software for Your potential use.
“Free Software” means Community Impact Use Software, Educational Use Software, Evaluation Software, Maker Software, Preproduction Release Software, and Research Use Software.
“Free Support Services” is defined in the Support Terms.
“Inductive Automation” means Inductive Automation, LLC, a California limited liability company with a principal place of business at 90 Blue Ravine Road, Folsom, California 95630, USA.
“Instance” means a single copy of the Software running on a single physical or virtual machine.
“Laws” means all applicable international, federal, state, and local laws, including common law, ordinances, codes, rules, and regulations.
“Maker Software” means an Instance of the Software made available by Inductive Automation to an individual person free of charge only for that individual’s personal use. For purposes of clarification, Maker Software may not be used for (i) commercial or revenue-generating activities or (ii) the benefit of a tax-exempt charity, research institution, educational institution, or nonprofit organization.
“Order” means an order form or similar ordering document that (i) incorporates the terms of this Agreement, (ii) sets forth the Products ordered by You and any associated fees, and (iii) has been agreed upon by the parties (e.g., by manual or electronic signatures of both parties or agreed through an electronic system specified by Inductive Automation). In the electronic system, You may be prompted to accept by clicking a button.
“Product” means, individually, as applicable, and “Products” means, collectively, the Software (including the related Activation Key(s)), the Documentation, and Support Services.
“Preproduction Release Software” means beta or other preproduction release of the Software that Inductive Automation may provide to You from time-to-time to preview new functionality and capabilities of the Software.
“Research Use Software” means an Instance of the Software (including the related Activation Key) provided by Inductive Automation to a research institution free of charge only for noncommercial research use by employees of the research institution.
“Reseller” means an intermediary authorized by Inductive Automation that acquires Products from Inductive Automation for resale to end users, including distributors, integrators, and original equipment manufacturers.
“Separately Signed Terms” means separate terms and conditions that apply to Products, which are agreed to in a separately signed written agreement between You and Inductive Automation such as an addendum or master software license agreement. For purposes of clarification, any customer-issued purchase order, business form (such as automated or “click-through” terms in a billing platform) or similar document provided by You are not Separately Signed Terms.
“Software” means Inductive Automation’s software (excluding software made available by Inductive Automation through the AWS and Azure Marketplaces, which are governed by separate software license agreements), in object code (machine readable) form only, including all versions, enhancements, modifications, improvements, derivatives, Updates, Upgrades and new releases thereof.
“Standard Support Services” is defined in the Support Terms.
“Support Plan” is defined in the Support Terms.
“Support Services” means, collectively, Free Support Services, Standard Support Services, After-Hours Support Services and Additional Support Services. For purposes of clarification, while Updates and Upgrades are discussed in the Support Terms insofar as Updates and Upgrades for an Instance of the Software may be available to You for that Instance of the Software, Updates and Upgrades do not constitute Support Services for purposes of this Agreement or the Support Terms.
“Support Terms” means Inductive Automation’s then-current maintenance and support terms at https://inductiveautomation.com/support/maintenance-support-terms.
“Update” is defined in the Support Terms.
“Upgrade” is defined in the Support Terms.
“You” and “Your” means the individual (acting in his/her/their individual capacity to acquire Products for personal use), the company, or other legal entity that accepted this Agreement. For purposes of clarification, if an individual accepted these terms on behalf of a company or other legal entity, “You” and “Your” refers to the company or other legal entity, and the company or other legal entity is bound by the terms of this Agreement.

ORDERS, LICENSE GRANT, AND SUPPORT SERVICES.

Direct Orders. The parties may enter into one or more Orders for Products under this Agreement. Each Order is binding on the parties and is governed by the terms of this Agreement except where expressly agreed otherwise. When a Reseller acquires Products directly from Inductive Automation for resale, the applicable reseller terms between Inductive Automation and the Reseller will govern that acquisition of Products for resale by the Reseller.
Reseller Orders. If You acquire Products from a Reseller pursuant to an order, purchase agreement or similar ordering document between You and the Reseller (each, a “Reseller Order”): (i) all references to an “Order” in this Agreement will mean the applicable Reseller Order between You and the Reseller unless otherwise expressly provided in this Agreement; (ii) the payment terms in the Reseller Order, not Section 5 of this Agreement, will apply to Your acquisition of Products from the Reseller, and fees set forth in the Reseller Order will be paid by You directly to the Reseller; and (iii) You will look exclusively to the Reseller for any applicable credits, refunds or any other claims You have against the Reseller. Notwithstanding anything to the contrary, no terms in any Reseller Order will be binding on Inductive Automation, and, as between You and Inductive Automation, this Agreement will prevail in the event of any conflict between this Agreement and any Reseller Order.
Delivery of the Software and the Documentation. Delivery of the Software and the Documentation is complete when Inductive Automation makes the Software and the Documentation available to You via electronic download from its website and, with respect to the Software, You receive the applicable Activation Key from Inductive Automation (or, if You purchased the Software via a Reseller, from the Reseller).
License Grant. The Software and the Documentation are licensed, not sold. Subject to Your compliance with the terms and conditions of this Agreement, including Your timely payment of all applicable fees, Inductive Automation grants You a personal, revocable, non-exclusive, non-transferable non-sublicensable license to download, install, and use the Software (but excluding any Upgrades that You have not purchased) and the Documentation solely for Your internal business purposes for the time period specified in the applicable Order. For purposes of clarification, if Inductive Automation previously granted You a perpetual license to the Software and the Documentation under prior terms, this Agreement does not change the perpetual nature of Your existing licenses under the prior terms. You are licensed to activate only the number of copies of the Software corresponding to the number of Activation Keys that You receive from Inductive Automation or a Reseller. If the applicable Order or other documents from Inductive Automation restrict or otherwise limit Your use of an Activation Key to Instances of the Software in non-production environments (e.g., a development license), then any use in a production environment is expressly prohibited and is not licensed. Inductive Automation, at its option, may charge You for the amount of the proper license based on Your use or pursue all remedies available at Law for the unlicensed use. Inductive Automation reserves all other rights in and to the Software and the Documentation not expressly granted to You in this Agreement. Notwithstanding anything to the contrary, You are not entitled to receive Upgrades unless You have paid the applicable fees.
Free Software.
1. Availability. As an accommodation to You, Inductive Automation may provide You with access to Free Software. Free Software may be furnished with additional terms regarding its use. You must accept those terms, if any, to use Free Software. Use of Free Software is at Your discretion.
2. Evaluation Software Term of Use. You may use Evaluation Software for the time period specified in the applicable Order or as otherwise provided to You by Inductive Automation in writing (email is sufficient). If there is no Order or other writing regarding the timer period for Your permitted use of the Evaluation Software, then Your use is limited to a two-hour runtime only.
3. No Commercial Use. You must not use Community Impact Use Software, Educational Use Software, Maker Software or Research Use Software commercially.
4. No Warranty or Liability for Free Software. Your use of Free Software is subject to the terms and conditions of this Agreement, except that Free Software is provided “as-is,” and technical support for and future enhancement of Free Software is not guaranteed nor included as part of Inductive Automation’s Support Services. Inductive Automation disclaims all liability and warranties regarding Free Software, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, satisfactory quality, and non-infringement. All use of Free Software is at Your sole risk and liability. Your sole and exclusive remedy and Inductive Automation’s sole and exclusive liability regarding Free Software will be for You to stop using Free Software. You waive all claims, now known or later discovered, against Inductive Automation regarding Free Software.
Changes to the Software and the Documentation. Inductive Automation or its licensors may make changes to the Software and the Documentation from time-to-time. For purposes of clarification, with respect to any Instance of the Software acquired by You, changes to the Instance of the Software will only apply if You download, install, and use the changed version of the Software. Inductive Automation will use commercially reasonable efforts to provide notice of any material changes to the Software and the Documentation via its website(s) and via email if You are subscribed to such email notices.
Support Services.
1. No Right to Support Services. Licensing the Software from Inductive Automation or a Reseller does not give You the right to Support Services or Upgrades. Notwithstanding the foregoing, Inductive Automation may provide You with certain Free Support Services from time-to-time in its sole discretion. Support Services purchased by You, if any, will be set forth in the applicable Order. Support Services are governed by the Support Terms, which are incorporated herein by reference.
2. No Warranty or Liability for Free Support Services. Your use of Free Support Services is subject to the terms and conditions of this Agreement and the Support Terms, except that Free Support Services are provided “as-is.” Inductive Automation disclaims all liability and warranties regarding Free Support Services, including all implied warranties and conditions of satisfactory quality, fitness for a particular purpose, merchantability, title, and non-infringement. All use of Free Support Services will be at Your sole risk and liability. Your sole and exclusive remedy and Inductive Automation’s sole and exclusive liability regarding Free Support Services will be for You to stop using Free Support Services. You waive all claims, now known or later discovered, against Inductive Automation regarding Free Support Services.

RESTRICTIONS AND RESPONSIBILITIES.

Restrictions. You will not reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct or obtain any source code of the Software. You will not modify, adapt, or create derivative works of the Software or the Documentation. You will not work around or bypass any technical restrictions or limitations in the Software. You will not convert the Software or its parts to a different computer language or environment, either manually or using an automated conversion tool, such that the Software or any modiﬁcation of it will run under any language, software, or program other than that implemented by Inductive Automation. You will not remove, minimize, block, or modify any logos, trademarks, copyright notices or other notices of Inductive Automation or its licensors that are included in the Software or the Documentation. Except as expressly stated in this Agreement, You will not sublicense, rent, lease, sell, trade, resell, publish, transfer, or lend the Software or the Documentation without Inductive Automation’s written consent. You may not publish or publicly distribute any Activation Keys, serial numbers, access codes, unlock-codes, passwords or other end-user-speciﬁc registration information that would allow a third party to activate the Software. You will not permit or assist any third party to violate any of the restrictions set forth in this Section 3.1. The restrictions set forth in this Section 3.1 do not apply to the extent they conflict with mandatory Laws.
Hosted Systems. You will not permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service, or other similar arrangement without Inductive Automation’s written consent.
Security; Disaster Recovery. Prior to delivery to You in accordance with Section 2.3 of this Agreement, Inductive Automation will use commercially reasonable efforts designed to identify and remove from the Software and the Documentation viruses or other malicious, unintended code designed to damage or disable a computer network or its contents (collectively, “Malicious Code”). Upon receipt of the Software and Documentation, You should run Your own scans to detect Malicious Code. Once You have downloaded the Software or the Documentation from Inductive Automation’s website(s), it is Your responsibility to have security protocols in place (e.g., running virus checks, monitoring access, and implementing firewalls) to ensure that Malicious Code is excluded from and does not impact Your systems, networks, hardware, software, data, and other technology, including copies of the Software and the Documentation on Your systems. You are also responsible for Your own disaster recovery plan, including but not limited to, securing access to and backing up Your data. Your sole and exclusive remedy and Inductive Automation’s sole and exclusive liability for Inductive Automation’s breach of this Section 3.3 is for Inductive Automation to provide You a new copy of the Software or the Documentation, as applicable, without Malicious Code. Any new copy of the Software so provided will remain subject to the same license and terms as the prior copy.
Third-Party Claims. Products provided to You by Inductive Automation are valuable tools to be used by You for Your internal business purposes. You acknowledge that Inductive Automation does not control Your processes or systems, or the creation, validation, sale, or use of Your products or services. You assume complete responsibility for Your processes, systems, products, and services, including decisions made and actions taken or not taken by You (or any others that You advise) based on information obtained using any Product. It is Your responsibility to independently verify any insights or outputs from the Software before using or sharing them. Except for Inductive Automation’s obligations to indemnify You as expressly set forth in this Agreement, (i) Inductive Automation will not be liable for any claim or demand made against You by any third party, and (ii) You will defend Inductive Automation, its Affiliates, its licensors, and their respective officers, managers, members, directors, employees, agents, successors, licensors, and assigns (each, an “Inductive Automation Indemnitee”) against, and will indemnify and hold each Inductive Automation Indemnitee harmless from any losses, claims, damages, penalties, fines, and costs (including attorney’s fees and expenses) incurred by an Inductive Automation Indemnitee in, any third-party claim, suit, or action brought against Inductive Automation Indemnitee(s) relating in any way to (a) Your processes or systems, or the creation, validation, sale, or use of Your products or services, (b) Your reliance on, disclosure of, or use of any insights or outputs from the Software, or (c) Your Responsible Claims. Inductive Automation reserves the right to assume the exclusive defense and control of any claim, suit, or action (without limiting Your indemnification obligations) if You fail to reasonably defend an Inductive Automation Indemnitee. In such event, You will reasonably cooperate as requested by Inductive Automation in its defense and control of the claim, suit, or action. You must not admit liability or incur obligations on Inductive Automation’s behalf without its written consent.
Responsibility for Users. You are responsible for Your employees, agents, consultants, contractors, and other individuals authorized by You to access or use the Products (collectively, “Users”). Without limiting the generality of the foregoing, any breach of this Agreement by Your Users, or any actions or omissions of Your Users pertaining to any Products or this Agreement, will be deemed to be Your breach, action, or omission. Any use of Products by Your Users will be solely for Your internal business purposes.
Audit. Inductive Automation may audit Your use of Products for compliance with the terms and conditions of this Agreement upon reasonable notice and during normal business hours. You will cooperate fully with Inductive Automation and its agents in any such audit. If an audit reveals any use of Products by You other than in compliance with the terms of this Agreement, You will take all necessary action to bring Your usage into compliance and will pay Inductive Automation for all reasonable expenses related to the audit in addition to any other liabilities You may incur as a result of Your non-compliance (such as paying for any unlicensed use).

SOFTWARE USAGE DATA. Inductive Automation may: (i) collect and process technical and related information about Your use of the Software, which may include modules installed, usage statistics (e.g., number of sessions, tags, projects, devices, connections, etc.), version of the Software, country, language, time zone, OS version, CPU architecture, memory size, and other similar data; and (ii) create certain aggregated, de-identified information related to the Software, including information about the environment of the Software, performance, and other usage information. You authorize Inductive Automation to use such data to support and troubleshoot, analyze trends and benchmark, and test, develop, market, and improve its products and services.

FEES AND PAYMENT.

Fees. You will pay to Inductive Automation all fees set forth in the applicable Order (“Fees”). Except as otherwise expressly set forth in this Agreement or the applicable Order: (i) Your payment obligations are non-cancelable and Fees are non-refundable; (ii) any renewal term for an Instance of the Software licensed for a limited term will automatically renew at Inductive Automation’s then-current rates or as otherwise agreed by You and Inductive Automation; and (iii) Support Plans will renew in accordance with the Support Terms or as otherwise agreed by You and Inductive Automation.
Invoicing and Payment. You will provide Inductive Automation with valid and updated credit card information, a valid purchase order, or an alternative document reasonably acceptable to Inductive Automation. If You provide credit card information to Inductive Automation, You authorize Inductive Automation to charge Your credit card for all purchased Products listed in the applicable Order, and if the purchased Products include any Instances of the Software licensed for a limited term or Support Plans, for the initial term and any renewal term(s) as set forth in the Order and the Support Terms, as applicable. Such charges will be made in advance, either annually or in accordance with the billing frequency stated in the applicable Order. If the applicable Order specifies that payment will be by a method other than a credit card, Inductive Automation will invoice You in advance and in accordance with the applicable Order. Unless otherwise stated in the applicable Order, invoiced Fees are due 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Inductive Automation and notifying Inductive Automation of any changes to such information.
Overdue Charges. If any invoiced amount is not received by Inductive Automation by the due date, then without limiting Inductive Automation’s rights or remedies, (i) those amounts will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable Laws, whichever is lower, (ii) You will be responsible for Inductive Automation’s costs of collection (including reasonable legal fees), and (iii) Inductive Automation may condition future Orders and renewals on payment terms shorter than those specified in this Agreement.
Suspension. If any amounts due to Inductive Automation under this Agreement or any other agreement between the parties are 30 days or more overdue (or 10 or more days overdue in the case of amounts You have authorized Inductive Automation to charge Your credit card), Inductive Automation may, without limiting its other rights and remedies, suspend Your use of Instances of the Software licensed for a limited term or Your Support Plan(s), as applicable, until all Fees are paid in full. Other than if Your credit card payment has been declined, Inductive Automation will give You at least 10 days’ written notice that Your account is overdue before such suspension.
Taxes. Except where expressly indicating otherwise, all amounts in Inductive Automation’s invoices are exclusive of taxes, duties, and any other charges (collectively, “Taxes”). You will pay or refund Inductive Automation for any applicable Taxes imposed by any government authority for Your use or receipt of Products. If You are exempt from value-added or sales tax, or other taxes, then You must provide a valid, timely, and executed exemption certificate, direct pay permit, or other government-approved documentation. If You are required by Law to deduct or withhold Taxes, Inductive Automation may increase the amount You pay so that Inductive Automation still receives the amount originally invoiced. Upon Inductive Automation’s request, You will promptly provide all tax receipts or other documentation reasonably acceptable to Inductive Automation confirming You have paid Taxes or have withheld Taxes.

OWNERSHIP. As between the parties, ownership of all Products remains with Inductive Automation or its licensors. You are not obtaining ownership of any Product or any intellectual property rights embodied in any Product by using or licensing the Product. Inductive Automation retains all right, title and interest in and to Inductive Automation’s Confidential Information and all Products, including any enhancements, updates, upgrades, modifications, improvements to and derivatives of Products, and all associated intellectual property rights therein. You will not use any Confidential Information disclosed by Inductive Automation to contest the validity, enforceability, or ownership of any intellectual property of Inductive Automation or its licensors. Inductive Automation reserves all rights to any reproduction of the Software, including the Documentation, logos, trademarks, icons and interface in whole or in part. Except to the extent it includes Inductive Automation intellectual property or data, You retain all right, title and interest in and to Your Confidential Information. Except as otherwise expressly provided in this Agreement, nothing herein will be construed to grant either party any implied rights or licenses in or to any intellectual property rights of the other party.

CONFIDENTIALITY.

Confidential Information. “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement, whether orally or in writing, that is designated as confidential, or that reasonably would be understood to be confidential given the circumstances. Confidential Information of Inductive Automation includes (i) Products, (ii) the technology, ideas, know-how, documentation processes, algorithms, models, and trade secrets embodied in or associated with the Software, (iii) any Activation Keys related to the Software, and (iv) the terms of Separately Signed Terms (if any) and any Order, including any pricing terms. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the party.
Exclusions from Confidential Information. Confidential Information does not include information that: (i) is known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (iii) is received by the Receiving Party from a third-party without knowledge of any breach of any obligation owed to the Disclosing Party; or (iv) is or has been independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
Use and Disclosure of Confidential Information. The Receiving Party will (i) not disclose Confidential Information of the Disclosing Party, except on a need-to-know basis to its employees, members, directors, and representatives (including financial, tax, and legal advisors) (collectively, “Representatives”), (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this Agreement, and (iii) protect Confidential Information from unauthorized use or disclosure using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party (a) will ensure that all its Representatives receiving Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those in this Section 7, and (b) will be liable for compliance with this Section 7 by each of its Representatives.
Permitted Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by a governmental agency, by operation of law, or if necessary, in any proceeding to establish rights or obligations under this Agreement. The Receiving Party will give the Disclosing Party prior notice of the required disclosure (if permitted to do so under law) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Publicity. You grant Inductive Automation a worldwide, nonexclusive, and irrevocable license (except where terminated in writing by customer) to use and display customer’s name, trademarks, service marks, and logos on Inductive Automation’s websites and in other marketing materials distributed by Inductive Automation (which may include emails and other web and print materials) and, with Your written approval (email is sufficient), in press releases and case studies. This right may be terminated by You at any time by providing notice to Inductive Automation.

LIMITED WARRANTIES AND DISCLAIMERS.

Limited Warranties.
1. Software Performance Warranty. Except for Free Software, Inductive Automation warrants that the Software as provided to You by Inductive Automation will conform in all material respects with the Documentation for a period of 90 days from the date the Software is delivered to You by Inductive Automation (“Warranty Period”). This warranty is void if the non-conformity is caused in whole or in part by Your failure to use the Software in accordance with Documentation or comply with the terms and conditions of this Agreement. Inductive Automation’s entire liability and Your exclusive remedy for breach of warranty will be, at Inductive Automation’s option, to correct or work around errors, replace defective Instances of the Software or refund the license fees actually paid by You for defective Instances of the Software returned by You during the Warranty Period. Following the Warranty Period, Standard Support Services and Additional Support Services, if purchased from Inductive Automation, will solely address issues in the Software.
2. Support Services Warranty. Except for Free Support Services, Inductive Automation warrants that it will perform Support Services in a professional, workmanlike manner as provided in the Support Terms or, with respect to Additional Support Services, the applicable Order. You must notify Inductive Automation of any material failure to comply with the foregoing warranty within 90 days from noncompliance. In this event, Your sole and exclusive remedy, and Inductive Automation’s sole and exclusive liability, will be to use reasonable efforts to reperform the relevant Support Services.
Disclaimers. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) INDUCTIVE AUTOMATION MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY OF THE PRODUCTS, (II) ALL PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND (III) INDUCTIVE AUTOMATION EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING ALL PRODUCTS, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INTERRUPTION OF USE AND FREEDOM FROM BUGS. INDUCTIVE AUTOMATION MAKES NO WARRANTY THAT ANY PRODUCT WILL MEET YOUR NEEDS OR REQUIREMENTS OR THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, OR SECURE OR THAT ANY CONTENT OR DATA GENERATED BY THE SOFTWARE WILL BE ACCURATE, COMPLETE, OR RELIABLE; NOR DOES INDUCTIVE AUTOMATION MAKE ANY WARRANTY THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE, SOFTWARE, OR SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM INDUCTIVE AUTOMATION OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. PRODUCTS PROVIDED BY INDUCTIVE AUTOMATION ARE VALUABLE TOOLS BUT YOU ASSUME COMPLETE RESPONSIBILITY FOR YOUR PROCESS, SYSTEMS, PRODUCTS, AND SERVICES, INCLUDING DECISIONS MADE OR ACTIONS TAKEN BASED ON INFORMATION OBTAINED USING INDUCTIVE AUTOMATION’S PRODUCTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY.

Infringement Claim Indemnity. Inductive Automation will defend You against any third-party claim alleging that the Software or the Documentation infringes or misappropriates the third party’s copyrights, patents, trademarks, or trade secrets, in each case, granted or registered by the United States (“IP Claim”), and will indemnify You from any damages and costs (including reasonable attorney’s fees) finally awarded against You by a court of competent jurisdiction as a result of, or for amounts paid by You under a settlement approved by Inductive Automation in writing of, an IP Claim. This indemnity is conditioned on You giving Inductive Automation (i) prompt written notice of the IP Claim, (ii) the sole control of and authority over the defense and settlement of the IP Claim, and (iii) all requested information and reasonable assistance. Inductive Automation will not admit liability or incur obligations on Your behalf without Your written consent, which shall not be unreasonably withheld, conditioned or delayed.
Injunction. If a permanent injunction is obtained against Your use of an Instance of the Software or the Documentation, Inductive Automation will, in its sole discretion: (i) modify the enjoined Instance of Software or the Documentation so that it is non-infringing; (ii) replace the enjoined Instance of the Software with non-infringing version of the Software that is functionally equivalent in performance or remove or replace the enjoined aspects of the Documentation; (iii) obtain a license for You to continue to use the applicable Instance of the Software or the Documentation as provided under this Agreement; or (iv) terminate the license for the enjoined Instance of the Software or the Documentation, have You return or destroy the enjoined Instance of the Software or the Documentation, and (with respect to the Software) refund to You any license fees actually paid by You to Inductive Automation (or paid by a Reseller to Inductive Automation on Your behalf) for the enjoined Instance of the Software, amortized over 36 months from the date the enjoined Instance of the Software was delivered to You in accordance with Section 2.3 of this Agreement. Inductive Automation may, in its sole discretion, provide the remedies specified in this Section 9.2 to mitigate infringement prior to the issuance of an injunction.
Exclusions. Notwithstanding anything to the contrary in this Agreement, Inductive Automation will have no defense or indemnification obligations or liability to You if: (i) an IP Claim does not state with specificity that the Software or the Documentation is the basis of the IP Claim; (ii) the total aggregate fees Inductive Automation has received from You for the Software and the Documentation under this Agreement during the 12 months immediately preceding the IP Claim is less than $50,000 USD; (iii) an IP Claim is based upon or arises out of Third-Party Software (as defined below); or (iv) an IP Claim is based upon or arises out of (a) compliance with Your instructions, specifications, or designs, (b) the combination, operation, or use of the Software, or any part of it, with any equipment, technology, software, processes, or materials not provided by Inductive Automation, if the Software or use of it would not infringe without such combination, (c) Your failure to use the latest release or version of the Software (including any corrections, patches, or enhancements) where the use would have prevented the IP Claim, (d) modifications, enhancements, or derivatives of the Software not made by Inductive Automation, or (e) Your breach of this Agreement or applicable law or failure to comply with the Documentation (all of the items under clause (iv), collectively, are referred to as “Your Responsible Claims”).
Sole and Exclusive Remedy. THIS SECTION 9 STATES INDUCTIVE AUTOMATION’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INDUCTIVE AUTOMATION, ITS AFFILIATES, OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS FOR LOST PROFITS, LOST REVENUE, LOST DATA, LOSS OF GOODWILL, COST OF COVER, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY PRODUCTS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF INDUCTIVE AUTOMATION, ITS AFFILIATES, ITS LICENSORS, ITS DISTRIBUTORS, OR ITS RESELLERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ANY REMEDY SPECIFIED IN THIS AGREEMENT OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE MAXIMUM AGGREGATE LIABILITY OF INDUCTIVE AUTOMATION TOGETHER WITH ALL OF ITS AFFILIATES AND ITS LICENSORS ARISING OUT OF OR RELATED TO A PRODUCT PURCHASED BY YOU PURSUANT TO THIS AGREEMENT, WHETHER OR NOT INSURED, WILL NOT EXCEED THE GREATER OF (I) THE TOTAL FEES ACTUALLY PAID BY YOU TO INDUCTIVE AUTOMATION (OR PAID BY A RESELLER TO INDUCTIVE AUTOMATION ON YOUR BEHALF) UNDER THE APPLICABLE ORDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT OF LIABILITY FOR (A) THE SOFTWARE, (B) THE DOCUMENTATION, OR (C) SUPPORT SERVICES THAT GAVE RISE TO SUCH EVENT OF LIABILITY OR (II) $10,000 USD. FOR A PRODUCT PROVIDED AT NO CHARGE (INCLUDING BUT NOT LIMITED TO FREE SOFTWARE AND FREE SUPPORT SERVICES), INDUCTIVE AUTOMATION, ITS AFFILIATES, AND ITS LICENSORS WILL HAVE NO LIABILITY WHATSOEVER.

EXCLUDED USES. Products are not fault-tolerant and are not designed or intended for use or resale in hazardous environments, including environments requiring fail-safe performance in which the failure of Products could lead to death, personal injury, or severe physical or environmental damage (collectively, “Excluded Uses”). Without limiting the foregoing, Excluded Uses include use of Products (i) in connection with the design, construction, maintenance, or operation of any (a) nuclear facility, (b) aircraft, aircraft communication, or aircraft ground support system, or (c) safety or health care control systems, including without limitation, life support systems, or (ii) for non-civilian purposes (e.g. armaments, nuclear activities, weapons, rockets, long-range unmanned aerial vehicles, or any other usage in the field of defense and military). Unless Inductive Automation gives its written consent and is consulted regarding the specific deployment, system set-up, and support plan, the license granted under this Agreement excludes any Excluded Uses, and You will not use Products for or with respect to any Excluded Uses. You will defend Inductive Automation Indemnitees against, and will indemnify and hold an Inductive Automation Indemnitee harmless from any losses, damages, penalties, fines, and costs (including attorney’s fees and expenses) incurred by an Inductive Automation Indemnitee in, any third-party (including any government entity) claim, suit, action, or investigation brought against an Inductive Automation Indemnitee relating in any way to Your noncompliance with this Section 11. Inductive Automation reserves the right to assume the exclusive defense and control of any claim, suit, action, or investigation (without limiting Your indemnification obligations) if You fail to reasonably defend an Inductive Automation Indemnitee, In such event, You will reasonably cooperate as requested by Inductive Automation in its defense and control of the claim, suit, action or investigation. You must not admit liability or incur obligations on Inductive Automation’s behalf without its written consent.

EXPORT COMPLIANCE.

Export. You will comply with all applicable export and re-export controls, embargoes, and economic and trade sanctions laws and regulations, including those of the United States (“Export Laws”). You represent that Products and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or (iv) unless expressly authorized by Inductive Automation in writing, used for non-civilian purposes (e.g. armaments, nuclear activities, weapons, rockets, long-range unmanned aerial vehicles, or any other usage in the field of defense and military). Without limiting the foregoing, You represent and warrant that (a) You are not a Sanctioned Person, and (b) You will not download or otherwise access, or facilitate a third party’s download or access of, any Products from a Sanctioned Country. You will, at least once per year, review and update Your list of Users who have access to all Products that You have purchased under this Agreement and confirm that no User is a Sanctioned Person and that all Users may continue to access such Products in compliance with Export Laws. Inductive Automation may conduct the necessary Export Laws checks and, upon request, You will promptly provide Inductive Automation with any necessary information. “Sanctioned Country” means a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions or trade or economic sanctions related to Products. “Sanctioned Person” means any person (I) included on an export control or sanctions list of designated or blocked persons maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (II) operating, organized, or resident in a Sanctioned Country; (III) the government of, or acting for or on behalf of the government of, Afghanistan, Myanmar, Venezuela, or a Sanctioned Country; (IV) a military or military-intelligence end user of Belarus, Cambodia, Myanmar, Nicaragua, Russia, or Venezuela, or (V) owned or controlled by one or more of the foregoing persons.
Semiconductor Development. You will not, without advance written authorization from Inductive Automation, use Products for the development or production of specified semiconductor manufacturing equipment or specified integrated circuits at any facility in China, Macau, or any other region specified in Country Group D:5 meeting the criteria specified in the U.S. Export Administration Regulations, 15 C.F.R. 744.23, without obtaining all U.S. governmental approvals and express authorization by Inductive Automation in writing.
Remedies; Indemnification. In the event that You fail to comply with any provision of this Section 12 or violate any Export Laws in connection with any Product, Inductive Automation will have the right to act in accordance with the terms of this Agreement and as required by U.S. law or the applicable law. Further, You will defend Inductive Automation Indemnitees against, and will indemnify and hold Inductive Automation Indemnitees harmless from any losses, damages, penalties, fines, and costs (including attorney’s fees and expenses) incurred by an Inductive Automation Indemnitee in, any third-party (including any government entity) claim, suit, action, or investigation brought against an Inductive Automation Indemnitee relating in any way to Your noncompliance with this Section 12, including Your violation or alleged violation of any Export Laws. Inductive Automation reserves the right to assume the exclusive defense and control of any claim, suit, action, or investigation (without limiting Your indemnification obligations) if You fail to reasonably defend an Inductive Automation Indemnitee. In such event, You will reasonably cooperate as requested by Inductive Automation in its defense and control of the claim, suit, action, or investigation. You must not admit liability or incur obligations on Inductive Automation’s behalf without its written consent.

TERM AND TERMINATION.

Term of the Agreement. This Agreement commences on the date You first accept it and continues until all licenses granted hereunder have expired or have been terminated. Licenses for a limited term terminate upon expiration of the term set forth in the applicable Order.
Termination by You. You may terminate this Agreement (i) for convenience at any time upon written notice to Inductive Automation and (ii) for cause if Inductive Automation breaches any term or condition of this Agreement in any material respect and has not cured the breach within 30 days following receipt of written notice.
Termination by Inductive Automation. Inductive Automation may immediately terminate (i) this Agreement, (ii) any individual license granted to an Instance of the Software, (iii) any Support Services, or (iv) any Support Plan upon written notice to You: (a) for reasonable cause, including Your unauthorized use of the Software, Your filing or being filed in bankruptcy, Your ceasing to do business, or any breach of Sections 2.4, 3, 5.1, 7, 11 and 12 of this Agreement; (b) in order to comply with the Law or requests of governmental entities; or (c) for any other breach of this Agreement that remains uncured after 30 days’ written notice.
Effect of Termination. Upon termination of this Agreement, all licenses and Support Plans provided under this Agreement automatically terminate, and You will immediately remove and destroy all copies of the Software, the Documentation, Activation Keys and any Inductive Automation Confidential Information in Your possession or control, and certify the removal and destruction in writing to Inductive Automation. Upon termination of any individual license granted to an Instance of the Software, the Support Plan, if any, provided for the Instance will automatically terminate and You will immediately remove and destroy the copy of the Software associated with the Instance and any Activation Key associated with the Instance, and certify the removal and destruction in writing to Inductive Automation.
Refund or Payment Upon Termination. If this Agreement is terminated by You for cause in accordance with Section 13.2(ii) of this Agreement, Inductive Automation will refund You: (i) license fees actually paid by You to Inductive Automation (or paid by a Reseller to Inductive Automation on Your behalf) for Instances of the Software licensed for a perpetual term, amortized over 36 months from the date each applicable Instance of the Software was delivered to You in accordance with Section 2.3 of this Agreement; and (ii) the unused prorated portion of any prepaid fees for (a) Instances of the Software licensed for a limited term and (b) Support Plans. If this Agreement is terminated for any other reason, no refund or credit will be given as a result of the termination, and You will not be relieved of Your obligation to pay the total fees set forth in any Order, which fees will become due and payable immediately upon termination. For purposes of clarification, where termination of this Agreement is based on a sole remedy clause, that termination is not based on a material breach of this Agreement and will not result in a refund under this Section 13.5.
Survival. Sections 1, 2.6-6, 8.2 and 10-15 will survive the expiration or termination of this Agreement.

THIRD-PARTY SOFTWARE. The Software may embed, link to, or be bundled with third-party software, including open-source software (“Third-Party Software”). Third-Party Software may be licensed by third parties under separate terms (“Third-Party Terms”). Third-Party Software and any applicable Third-Party Terms are identified in the notice.txt files of the Software, and Third-Party Terms control solely with respect to Third-Party Software. Notwithstanding anything to the contrary, under no circumstances is Inductive Automation responsible for Third-Party Software. Your only recourse with respect to Third-Party Software is from the applicable third party or Third-Party Terms You entered.

GENERAL.

Entire Agreement and Order of Precedence.
1. No Separately Signed Terms. Subject to Section 15.3.2, this Agreement, together with the Support Terms and Orders (excluding Reseller Orders), is the entire agreement between the parties with respect to the Products, and supersedes and replaces all prior agreements and understandings between the parties relating to the Products, including any nondisclosure agreements. Terms and conditions between the parties related to training services provided by Inductive Automation, if any, are a separate agreement.
2. Separately Signed Terms. Notwithstanding anything to the contrary in Section 15.3.1, during the time period that any Separately Signed Terms are in effect between You and Inductive Automation, the Separately Signed Terms will prevail over any directly inconsistent terms that conflict with this Agreement.
3. Order Of Precedence. In the event of any conflict or inconsistency of provisions among the documents governing Your acquisition or use of Products, the following order of precedence (in descending order) will govern the interpretation of the documents: (i) Separately Signed Terms, if any; (ii) Orders (excluding Reseller Orders), and (iii) this Agreement, as amended from time to time.
4. Your Terms. The terms of any purchase order, business form (such as automated or “click-through” terms in a billing platform), or similar document provided or issued by You or any governmental acquisition regulation, whether or not signed by Inductive Automation (collectively, “Your Terms”), are unacceptable to and expressly rejected by Inductive Automation, and will be deemed null and void and of no force and effect. Your Terms will not amend, supplement, or modify this Agreement even if the language in Your Terms says otherwise.
Severability. If any provision of this Agreement is found by a competent judicial authority to be unenforceable in any respect, the provision will be limited or eliminated to the minimum extent necessary so that the remainder of this Agreement will continue in full force and effect.
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right, and the waiver of any right, breach or default will not constitute a waiver of any other right under this Agreement or any subsequent breach or default.
Assignment. You may not assign this Agreement, in whole or in part, whether by contract or operation of law, without Inductive Automation’s written consent. Inductive Automation may assign this Agreement, in whole or in part, without Your consent. This Agreement will be binding upon and inure to the benefit of each party’s permitted successors and assigns.
Independent Status of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
Amendment. Inductive Automation may amend this Agreement from time-to-time upon 90 days’ written notice to You (email or updating the Inductive Automation website is sufficient) so long as the amendment is not specific to You. If You do not agree to an amendment, You may terminate this Agreement for convenience in accordance with Section 13.2(i).
Notices. Notices related to this Agreement will be in writing and sent to, with respect to Inductive Automation, the address specified in Section 1, and, with respect to You, Your address as specified in Your most recent Order. A party may change its address for receipt of notice by delivery of written notice to the other party. All notices sent to Inductive Automation will be sent to the attention of the Legal Department.
Feedback. If You provide any ideas regarding Products, including suggestions for changes or enhancements (collectively, “Feedback”), the Feedback provided by You may be used by Inductive Automation without condition or restriction.
Force Majeure. Neither party will be in default nor liable for any delay or failure to comply with this Agreement due to a natural disaster, pandemic, war or act of terrorism, act of government, or other circumstance beyond the reasonable control of the affected party (each a “Force Majeure Event”) for the duration of the Force Majeure Event; provided, that the affected party promptly notifies the other party of the occurrence of the Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event does not permit You to delay or fail to comply with Your payment obligations under this Agreement unless the Force Majeure Event results in the inability of the banking system to process payments.
Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the Laws of the State of California, without regard to the principles of conflicts of law, and any dispute, controversy, or claim arising out of this Agreement will be brought exclusively in the state or federal courts of Sacramento, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each party consents to the personal jurisdiction, venue and convenience of these courts.
Interpretation. The section headings used in this Agreement are for convenience and reference only and do not form part of this Agreement. A word importing the singular includes the plural and vice versa. The word “including” will be interpreted to mean “including without limitation”.
License Rights Applicable to the U.S. Government. The Software and the Documentation are commercial products that were developed exclusively at private expense. If the Software and the Documentation are acquired directly or indirectly for use by the U.S. Government, the Software and the Documentation are considered ‘Commercial Items’ and ‘Commercial Computer Software’ or ‘Computer Software Documentation’, as defined in 48 C.F.R. §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as applicable. The Software and the Documentation may only be used under the terms and conditions of this Agreement as required by 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. The U.S. Government will only have the rights expressly set forth in this Agreement, which supersedes any conflicting terms or conditions in any government order document, except for provisions which are contrary to applicable mandatory federal Laws and expressly identified by You in the applicable Order. Inductive Automation will not be required to obtain a security clearance or otherwise be involved in accessing U.S. Government classified information.
Cirrus Link Software. Cirrus Link Solutions, LLC (“Cirrus Link”) is the third-party provider of certain Cirrus Link-branded software products (“Cirrus Link Software”) made available by Inductive Automation from time to time. Separately purchased Cirrus Link Software is accompanied by and subject to any applicable Cirrus Link terms and conditions (“Cirrus Link Terms”). Notwithstanding anything to the contrary, under no circumstances is Inductive Automation responsible for Cirrus Link Software. Your only recourse with respect to Cirrus Link Software is from Cirrus Link or the Cirrus Link Terms You entered.

INDUCTIVE AUTOMATION MASTER SOFTWARE LICENSE AGREEMENT

INDUCTIVE AUTOMATION
MASTER SOFTWARE LICENSE AGREEMENT