End User License Agreement for BACHMANN Software (hereinafter referred to as EULA)

THIS EULA IS AN AGREEMENT BETWEEN BACHMANN electronic GmbH (HEREINAFTER REFERRED TO AS "BACHMANN") AND YOU, THE END USER OR OEM, (HEREINAFTER REFERRED TO AS "LICENSEE", WHICH MAY REFER TO A NATURAL PERSON OR LEGAL ENTITY). BACHMANN HEREBY ASSURES THAT TO THE BEST OF ITS KNOWLEDGE AND BELIEF IT IS AUTHORISED TO GRANT THE RIGHTS TRANSFERRED WITHIN THE SCOPE OF THE FOLLOWING CONTRACT. BY OPENING, DOWNLOADING, INSTALLING, USING OR ACCESSING THIS SOFTWARE PRODUCT, AS WELL AS BY EXERCISING YOUR RIGHTS TO USE THIS SOFTWARE PRODUCT, YOU AGREE AS LICENSEE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT UNDERTAKE AS LICENSEE TO OBSERVE THE TERMS OF THIS EULA AND IF NO ADDITIONAL WRITTEN CONTRACT WITH BACHMANN IS APPLICABLE, TERMINATE THIS INSTALLATION IMMEDIATELY, REMOVE ANY SOFTWARE THAT HAS ALREADY BEEN INSTALLED, REFRAIN IMMEDIATELY FROM ANY FURTHER USE AND RETURN THIS SOFTWARE PRODUCT TO THE SOURCE OF SUPPLY. 

 1 License

- BACHMANN shall grant the licensee the non-exclusive and non-transferable right to use the software product and the accompanying documentation subject to the terms of this EULA, provided that the relevant license fees are paid as a single payment or within the scope of an OEM or cooperation agreement. The licensee shall be granted this right and shall comply with all associated restrictions and obligations. 
- The licensee acknowledges that the software product has been licensed and not sold. The licensee has only been granted a license for the intended use of the software subject to the terms of this EULA in accordance with the uses agreed in the contract or in accordance with the use described in the documentation supplied. This means that the software product is not the property of the licensee, neither in whole or in part. Neither is third party software which may be contained in the software product the property of the licensee. 
- The licensee is solely granted the right to use the basic version of the software product. Certain components, parts or functions of the software product are beyond the scope of this basic version and may only be used if a special additional license has been granted in writing by BACHMANN. Separate remuneration is required from the licensee for such additional licenses.

 2 Limited warranty

- The following terms regulate conclusively the warranty conditions in relation to the software product. 
- The obligation of BACHMANN within the scope of the warranty shall exist solely in the correction or the exchange of a faulty software product. In the event of a warranty claim and if the licensee submits a written report to BACHMANN within the warranty period, BACHMANN shall make reasonable efforts to rectify or replace the software for the licensee free of charge. BACHMANN is not obliged to provide corrections to or replacements for the software product if the relevant functionality is already provided by the use of an updated version of the software product. 
- BACHMANN warrants to the licensee that the software product functions substantially in accordance with the accompanying documentation (this shall exclude evaluation versions without a RELEASE status - see section 7 - and third party software). BACHMANN shall not be liable for the marketability, fitness for use, performance or other suitability for a specific purpose. Furthermore, BACHMANN does not warrant that the software product fulfils the requirements of the licensee or functions in the combinations required by the licensee, or operates reliably, error-free or uninterrupted, or complies with the statutory requirements concerning the safety of persons with regard to automated equipment (such as IEC, ISO, DIN EN) and BACHMANN disclaims any liability in this regard. The licensee assumes responsibility for determining whether the software meets its requirements. 
- BACHMANN warrants that the media on which the software product is supplied is free of defects in materials and workmanship under normal use, and that the unmodified software product performs the functions described in the relevant documentation subject to proper installation and use. 
- BACHMANN warrants to the licensee that the software product does not infringe any copyrights, patents or other intellectual property rights in accordance with Austrian law at the time of delivery. BACHMANN shall hold the licensee harmless from all costs and damages arising from any such claim provided that the licensee notifies BACHMANN in writing within 30 days after the notification of such a claim, provided that BACHMANN has exclusive control of the contesting of such a claim, and the licensee provides BACHMANN with information, authorisation and support in contesting this claim or in the negotiation of a settlement. On receiving notification of the alleged infringement of third party rights, BACHMANN is entitled to terminate the EULA and refund the license fees paid by the licensee for the software product or replace the relevant software product or modify it in such a way that third party rights are no longer infringed or purchase the right of further use of the software product for the licensee. 
This provision does not apply if a breach, default, infringement or nonobservance could have been avoided through the use of a current version of the software product, or if the breach, default, infringement or nonobservance arises from the use or combination of the software product with other software, hardware or other materials or through the fault of the licensee or a third party, or if the function for which the infringement of copyright or patent has been claimed is a component supplied by a third party for which the copyright has been claimed by the original supplier. 
- BACHMANN shall not be liable for any loss or damage arising from the late delivery of the software product, further developed versions or bug fixes or other performances within the scope of this EULA. 

 3 Limitation of liability

- Any liability of BACHMANN for damages of any kind is excluded. BACHMANN shall in particular not be liable for any loss of earnings, lost or delayed income, interruption of business, loss of business information, data loss, production failure, indirect or consequential damage, fines or other damages arising from the use, failure or inability to use the software product, even if BACHMANN was notified of the possibility of such damage.  

 4 Activities involving increased risk

- This software product was not developed, manufactured or designed for use or resale as a fail-safe processing or real-time processing system for which the failure of the software product may cause direct environmental damage or injury to persons with or without loss of life. BACHMANN expressly disclaims any warranty or liability for the suitability of the software product for activities involving increased risk. The licensee shall agree that BACHMANN is not liable for damages or other claims arising from such use of the software product. 

 5 Termination of the contract 

- BACHMANN is entitled to terminate this EULA for a sound reason with immediate effect without notice. The following reasons apply in particular,
-	if the licensee does not observe the terms of this EULA;
-	if a regular (e.g. monthly) payment of the license fee is agreed and if insolvency proceedings have been initiated in respect of the assets of the licensee, or if the application for such proceedings has been rejected due to insufficient funds to cover costs, or if the licensee suspends payment to the extent that this is permissible by  mandatory law.
- On termination of the EULA the licensee undertakes to remove all copies of the software product from its systems, suspend the use of the software product and destroy the software product including the entire documentation or return it to BACHMANN at its own expense. The licensee shall inform BACHMANN within 30 days after the removal or destruction that this has been completed. BACHMANN is entitled to verify the destruction or removal of the software at the premises of the licensee. The termination of the EULA does not release the licensee from its liability or any unfulfilled obligations (such as fees incurred or confidentiality). 


 6 Property rights and restrictions, confidentiality

 6.1 Terms, scope and application

- ‘Software product’ refers to the supplied software together with libraries in binary format or as source code, including all additional components, test programs, examples or configurations as well as updates contained within the scope of maintenance operations, product support or training seminars, regardless of the type of delivery or purchase. Installation programs, configuration files or other types of resource files, including all hardware or system description files, all types of manuals, documentation, online help files or product specifications, descriptions and figures of procedures used or issues as well as training documents shall be deemed components of a software product unless this has already been made generally accessible and public with the same wording.

 6.2 Intellectual property

- The intellectual property rights for this software product shall belong to BACHMANN. Only a license shall be granted (see section 1). The licensee shall acknowledge these rights and undertakes to protect, not compromise, restrict or affect the property rights of BACHMANN with regard to the software product with at least the same care as its own property rights. 
- The component parts provided by third party manufacturers and contained in this software product or with the installation form of the software product may be subject to separate property rights. The licensee undertakes to fully acknowledge, not compromise, restrict or affect these property rights. 
- The licensee is not permitted to disclose, make accessible or transfer the software product or parts thereof to third parties, or to pass on, copy, translate, reverse engineer, decode, decompile, disassemble or otherwise try to access the source code or the process contained therein or modify the software product without the written consent of BACHMANN. The licensee is not entitled to rent or lease the software product or parts thereof to a third party, unless the licensee has been given written consent by BACHMANN. 
- BACHMANN shall grant the licensee the right to make copies of the software product within the scope of its data backup procedures, provided that these are created solely for archiving purposes and not for productive use.
- Software products that are designed and supplied for use on or in conjunction with automation hardware from BACHMANN must be used by the licensee solely in combination with this automation hardware and not on or in conjunction with other systems.
- BACHMANN reserves the right to take reasonable measures to trace serial numbers and license codes at any time without any previous notice, for which the licensee undertakes to offer the appropriate assistance.

6.3 Transfer of rights

- The licensee is not entitled to transfer the rights granted for the intended use of a software product to third parties or to assign or pass them on in any other way. This does not apply to software components that are required for the operation of the automation hardware supplied by BACHMANN and integrated in the machines or plants of the licensee for resale (runtime components). - The licensee shall undertake to make a written utilisation or license agreement with its end customers which provides for the legally binding transfer of the agreements and obligations of this EULA to the end customer and shall show verification of this to BACHMANN on request. 
- In the event of license infringements or any other license-related dispute between BACHMANN and the licensee concerning the VxWorks real-time operating system of the supplier WIND RIVER SYSTEMS INC., the licensee shall agree on request to grant WIND RIVER SYSTEMS INC. the right to plaintiff.
- The licensee is not entitled to extend or modify the software product. If this is nevertheless done, all rights of property, license and use for these modifications or extensions shall be assigned to BACHMANN without indemnity. Modifications which by their nature could force disclosure of the software products of BACHMANN as freely accessible and usable software (Public Domain, Open Source, GPL Gnu Public License, etc.) are excluded by the automatic transfer of the rights of use to BACHMANN and are strictly prohibited. 


6.4	Confidentiality

- The licensee must treat as confidential and keep secret the software products supplied by BACHMANN, in particular the processes and functions contained therein. It must not pass them on or make them directly or indirectly accessible to third parties without the written consent of BACHMANN.
- The licensee undertakes to treat the information obtained by means of or in relation to software products of BACHMANN with due care, to treat this information as confidential and to keep it secret.
- The licensee undertakes to treat as confidential and keep secret all additional source codes, interface descriptions or other information about the software product that is not included with it, even if these are required for the use of the software product.
 

 7 Versions, evaluation and test samples

- All software products of BACHMANN are assigned a specific version number and status (e.g. 2.01 RELEASE). The version number indicates the ordinal position of the version within the development process compared to previous versions. Ascending version numbers without separate instructions do not provide information concerning compatibility with previous versions. The status (e.g. ALPHA, BETA or RELEASE) indicates the progress within the development process for a particular version number. The number and status can be determined according to the corresponding documentation.
- Only software products that are marked as RELEASE are designed for utilisation and delivery for fully functional applications (production level).
- Software products with a different status (e.g. ALPHA, BETA, RELEASE CANDIDATE, …) are exclusively for information, evaluation and testing. They are provided without any warranty for faults and must only be used in a suitable test environment and not for fully functional applications. In addition to the above general liability restrictions for software products, the user / integrator must be aware of the following when testing such versions: Each type of software without a RELEASE status was possibly not tested or not tested to the extent that can be expected of a software with RELEASE status. In certain circumstances, the functionality or the expected / required degree of stability in accordance with the documentation may not be provided. Software products without RELEASE status are possibly not compatible with previous or later versions, or generate or modify data that is not compatible with previous or later versions. For this reason, we urgently recommend the creation of a safety copy of all projects / files used with the software product without RELEASE status.
- In certain circumstances, BACHMANN supplies software products with RELEASE status together with the same or other software products without RELEASE status on one medium (e.g. CD-ROM). This procedure is in order to provide interested customers with information in advance, but does not indicate the fitness for use of these software products without RELEASE status, and is not to be construed as a requirement to the customer to use these software products without RELEASE status outside of a laboratory or test environment.     

 8 Third party software

- Third party software may be contained as part of the software product and is only made available to the licensee for use as part of the software product.
- Other third party software can be provided as a separate software product which is transferred or licensed to the licensee directly by the third party (original manufacturer) in accordance with the respective contractual agreement between it and the third party (e.g. Adobe Acrobat Reader). 
- BACHMANN disclaims warranties of any kind for third party software and does not accept liability for any damage. 
- Components of the following manufacturers may be contained in the software products of BACHMANN (without any claim to completeness):

WIND RIVER SYSTEMS INC. (USA), TECHNOSOFTWARE AG (CH), 
MICROSOFT (USA), PEERSEC NETWORKS INC. (USA), SUN MICROSYSTEMS (USA)
THE ECLIPSE FOUNDATION (USA), 3S SOFTWARE SOLUTIONS (DE)
 
- The manufacturer names or product designations stated in this EULA or in the software products of Bachmann may be registered trademarks of other manufacturers and subject to the relevant statutory protection. By naming these manufacturer and product designations, BACHMANN does not intend to breach these rights or to claim special suitability, qualification, certification or other approval by these manufacturers but solely to inform the licensee.
- The complete list of the third party suppliers associated with an actual BACHMANN software product can be obtained on request.
- When required by third party manufacturers, the original license agreements of the third party manufacturer in relation to BACHMANN or the final end customer are stored in the target directory of the software product concerned. 
- "Eclipse" is a registered trademark of the Eclipse Foundation. Important components that are used partly as a basis for Bachmann software products are available also as source code from the Eclipse Foundation (http://www.eclipse.org/).

 9 Update procedure

- If necessary BACHMANN shall produce updated versions of the software product.  These types of updates of BACHMANN shall only be made available to the licensee if it is in possession of a valid maintenance contract for each of its licenses (software products) or if this is regulated within the scope of a cooperation or OEM agreement. 
- The statutory licensing for a software product in a certain version does not automatically entitle the licensee to the procurement of improvements, updates, new versions or subsequent versions of the software product and does not in any way imply a claim to the continuation of the product development or the compatibility of a continued product development with previous versions.

 10 Documentation

- The software product is normally supplied by BACHMANN together with an online documentation which is integrated in the software product or is stored in the target directory of the software product during the installation. No other documentation is supplied. All the references in this EULA to the documentation refer to the online documentation supplied with the software. 


 11 Export control

- The licensee undertakes not to send, transport or export to a state the software product or a software package or an application that was developed using this software, or to reimport it from this state if this is prohibited by export laws, regulations or ordinances of any kind, and undertakes not to use the software product in such a way that is prohibited by export laws, regulations or ordinances. It is the obligation of the licensee to obtain any authorisations, exemptions or approvals required for the export of the software product. The licensee shall indemnify and hold BACHMANN harmless against all claims that third parties, particularly (tax) authorities make against BACHMANN because the licensee has breached its obligations.
- Software products can contain the components of third party suppliers whose domicile is outside of Austria and which are therefore subject to different export requirements. BACHMANN shall supply on request a list of the relevant manufacturers which have components integrated in the BACHMANN software product and shall thus enable the licensee to clarify the additional export requirements. 

 13 Use only for demonstration / evaluation purposes

- The terms of this EULA must also be observed if the software product is used without a valid license for demonstration or evaluation purposes. 
- Use of the software product for demonstration / evaluation purposes is only permissible if BACHMANN has given consent in writing, unless this was conclusively granted by BACHMANN by the full provision of the software product on a freely accessible and public website. A granted right to use a software product of BACHMANN for demonstration or evaluation purposes can be revoked by BACHMANN at any time.  
- The software product must not be used without a valid license code or agreement for genuine applications or in an environment that is not a reasonable demonstration / evaluation environment. 

 14 General terms

- This EULA is subject to Austrian substantive law. The UN Sales Law is excluded.
- The place of jurisdiction for disputes with licensees with residence/domicile or their usual residence in a country that has signed the Lugano Agreement of September 16 1988 or in which the (EC) Council Regulation 44/2001 on the Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters applies shall be Feldkirch (Austria). 
Disputes with licensees that have their residence/domicile in another state shall be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or more arbitrators appointed in accordance with these rules. The place of arbitration shall be Feldkirch; the language of arbitration shall be German or English. The judgement of the Arbitral Court shall be final if the mandatory regulations of Austrian civil process code were complied with. The arbitral clause is subject to Austrian law.
In both cases (place of jurisdiction and arbitral clause) BACHMANN is entitled to claim against the licensee before another court responsible for it.
- If the provisions of this EULA are or become invalid or unenforceable, the remaining provisions shall be unaffected. These invalid or unenforceable provisions are deemed as replaced by valid or enforceable provisions that best achieve the intended commercial purpose (severability clause).
- All agreements, amendments or additions to this EULA (in particular warranties with regard to the features, functions, performance or quality of the software product) must be in writing and must be agreed by BACHMANN.
- Communications in relation to this EULA must be made in writing in GERMAN or ENGLISH: In the event of ambiguities or contradictions between the two language versions of this EULA or any additional contractual provisions or communication, the GERMAN version shall be applicable. Any communication must be sent to the recipient by telegram, by fax or by similar means and must be confirmed within 5 working days after receipt. 

Bachmann electronic GmbH
Kreuzaeckerweg 33
A-6800 Feldkirch
AUSTRIA

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